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Time To Live: Safer Gun Safes and Smarter Smart Guns

Katrina Brees Tells Her Mother’s Story

I know my mom didn’t shoot herself because she wanted to be dead. She did it because she was in unbearable pain and in the throes of a psychiatric episode. My mom, Donna Nathan, loved her life. She loved to dance to Cajun music and The Beatles. She’d grab the sides of her skirt and wave it back and forth while she sang the lyrics, stepping to the beat and tossing her red hair. She loved her partner, Pat, and their four cats, kids, and grandbabies. She lived in the home of her dreams. She had access to great health care and had successfully battled many medical conditions. For decades, her bipolar disorder had been relatively well managed with a small amount of medication and she led a very full life.

Until one day her medication stopped working. Her doctor prescribed a new drug that produced a series of extreme side effects including insomnia, tremors, panic attacks and eventually suicidality. My mom became suicidal, so she did everything she had been trained to do to protect herself from suicide.  She voluntarily committed herself into an inpatient psychiatric facility. She would commit herself three times in the 3 months before her death. She gave up all her freedoms and comforts in order to save herself from suicide.

In the last weeks before she died, our family encouraged her to go back into inpatient care where she could be protected, but she said she was too frail to go back to “jail.” Pat quit his job and watched over her full time from home instead. Her friends and family committed themselves to daily contact with her with streams of encouraging texts and calls. Between appointments, Donna was in daily e-mail contact with her psychiatrist.

Her last search on her phone was for “gun stores” and then she let her phone provide her with driving directions to the closest one, just a couple miles away. She had said she was going to the mall to buy underwear that morning. It was only a moment after she left that Pat felt deeply concerned. He called her repeatedly and got no answer and then called the police to attempt to intervene on her suicide attempt. She had never even held a gun before, but in a short time she had her first gun. A .38 caliber with a box of rose gold bullets with pink plastic centers that promote breast cancer awareness. She drove to a special spot at the park near her house and wrote a note that said “Pat, I’m sorry. I love you.” And then she shot herself and died.

Slowing Down Gun Purchases Saves Lives

Donna Nathan’s story is all too common.

Firearms are the most common means of suicide. In 2020, firearms were used in 53% of suicides. With 24,292 gun suicide victims annually, this is a leading cause of death for Americans. That’s more than 66 people each day. Many suicide attempts are impulsive, and the vast majority (90%) of survivors do not keep trying until they succeed. But people who choose firearms as their suicide method very rarely survive: about 85% of gun suicide attempts end in death.

It is a common misconception that a person who decides to attempt suicide will simply switch to another method if access to their first-choice method is denied. That’s simply not true. With respect to delaying access to firearms in particular, the best evidence comes from analysis of waiting periods for purchasing handguns: waiting periods significantly reduce gun suicide with no increase in non-gun suicides. Even if some substitution of methods does occur, the other common methods of suicide are not nearly as lethal as a firearm. For example, the estimated fatality rate of a suicide attempt using drugs is less than 5%.

Donna Nathan should have been able to have suspended her own ability to buy a gun. 

“Donna’s Law” (also known as the “Voluntary Do-Not-Sell List”) gives people the option to voluntarily and confidentially put their own names into the federal background check system to prevent impulsive gun purchase for a suicide attempt. Donna’s Law would be available to anyone, no questions asked. But it would be particularly appropriate for someone like Donna Nathan who voluntarily committed herself for inpatient psychiatric treatment. Had her commitment been involuntary, she would have been automatically added to the background check system. We already know that people recently hospitalized for mental health problems are at greatly elevated risk of suicide. Three states so far have adopted Donna’s Law. Our goal is 50 states and the federal government. Efforts are on-going.

Gun Owners Also Have Options To Prevent Suicide

Delaying access to firearms in times of crisis can be a life-saving strategy not just for first-time gun buyers like Donna Nathan, but also for gun owners. A recent California study found that a slight majority of gun suicide deaths involved guns owned for more than one year. A remarkable Public Service Announcement in Utah (where suicides make up 84% of all firearm deaths) recommends that gun owners during a depressive episode let a friend or family member “babysit” their guns. There are efforts in many states to facilitate and build on that strategy—including online maps of police stations and gun dealers that are available to babysit firearms.

But some gun owners, even if they recognize that their suicide risk is temporarily elevated, will not take advantage of the babysitting option. They may not want to reveal their struggles to friends or family. They may not have the time, energy, or means to locate other storage facilities and to drive there and back. They may not want to let go of their firearms or may not trust someone else to return the firearms later.

Technology could offer these gun owners alternatives. One such option already exists. More and more states are adopting laws requiring that firearms be safely stored. A gun safe is a good option, but not all safes are created equal. Gun owners, especially those who sometimes struggle with thoughts of suicide, should consider a gun safe with an optional time-delay function. Such a safe provides quick access during normal times, but can be programmed during crises to open only after a set time delay. On currently available time-delay safes, the delay can be anywhere from a minute to a week. The delay option could be turned off after the crisis passes. We call this a “Donna’s Safe.” Donna’s Safe is another in a long line of hand-tying techniques. One could imagine a similar idea of locking food away so that you could not snack at inappropriate times and indeed such devices already exist.

An optional time-delay feature could similarly be added to so-called “smart guns,” which have just recently entered the market. This would provide an even easier way for a gun owner to protect against impulsive self-harm. Smart guns are currently designed to be operable only by the owner—in other words, a smart gun restricts the who. A slightly redesigned smart gun with a time-delay option—aka, “Donna’s Smart Gun”—could restrict the when. Timing, with many suicides, is everything.

Gun rights organizations might object that slowing down access to firearms will cost the lives of gun owners who were therefore unable to use their firearms when they needed them for self-defense. These technologies could be designed with backdoors to unlock the gun if a trusted friend or healthcare professional chosen by the gunowner provided a separate code. It would be truly ironic, however, for gun rights organizations that claim to promote liberty to deprive gun owners from deciding for themselves that, in a period of crisis, the risk of self-harm outweighs the risk of attack. These technologies give people new ways to protect themselves. 

*          *          *

The divisive gun debate usually centers on government action or inaction. Largely missing is a recognition that private decisions, without any government mandates, may have even more power to reduce gun deaths. Donna’s Law requires a new law, but it’s a law that expands choice by giving individuals a new, voluntary way to protect themselves. Current gun owners can also delay their own access to firearms, and thereby reduce their risk of suicide, by purchasing time-delay safes already on the market and by urging smart gun manufacturers to offer a time-delay function.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]




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

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 that vindicate Second Amendment claims. It’s likely this case will go en banc as well. But even though its formal legal effect may be temporary, the decision is analytically, doctrinally, and jurisprudentially significant in the way it assesses state law. Those moves may be influential to other judges reviewing Second Amendment challenges and even to the Supreme Court itself if this case eventually makes its way to the high court.

There are actually two laws at issue in the case. The first bars young adults—those between ages 18 and 21—from purchasing long guns (rifles, shotguns, etc.) without first obtaining a hunting license. That law exempts certain law enforcement and active and former military members. The second law at issue completely bars young adults from purchasing one kind of long gun—centerfire semiautomatic rifles. It does not have any exceptions for hunting license holders, although it exempts the same set of law enforcement and military members. Under these laws, young adults are not prohibited from possessing long guns, including centerfire semiautomatic rifles, nor barred from acquiring them in legal ways other than purchase, such as intrafamily transfers (like a gift from a parent). The state’s restriction on the subset of rifles was enacted in 2019 after the Poway synagogue shooting, perpetrated by a 19-year old with a semiautomatic rifle (only the dissent mentioned the impetus for the law). A law not challenged in the litigation, but that formed part of the panel’s discussion of the overall regime, bars young adults from purchasing handguns.

In the district court, the challengers lost on their claims against both the general long gun regulation and the narrower rifle restriction. That court concluded that the state won under the first step of the two-part framework: these laws did not burden conduct protected by the Second Amendment. As an alternative holding, the trial court applied intermediate scrutiny to each claim and held that the laws would pass.

On appeal, Judge Ryan Nelson, joined by Judge Kenneth Lee, affirmed the ruling as to the hunting license requirement, but reversed the ruling as to the semiautomatic rifle restriction. At the first stage of the two-part framework, the majority first acknowledged its limitation as “jurists not historians,” and even noted that corpus linguistics could be a useful part of the historical inquiry (it had called for briefing on the question in this case, but neither party urged the court to use corpus linguistics to help resolve the dispute). In determining at step one whether “the challenged law regulates conduct historically outside the scope of the Second Amendment,” the panel stated that “the Framers’ understanding of the Second Amendment at and around the time of ratification has special significance.” It added that, because the Fourteenth Amendment incorporated the Second Amendment, “our historical analysis also must consider how the right to keep and bear arms was understood in 1868, when that amendment was ratified.” The court did not provide any insight into which timeframe’s tradition to adopt if the historical evidence was different in these each period.

To assess the historical evidence, the court first stated that even though this was a regulation of commerce, the district court was correct in that its “historical analysis focused not on the history of commercial regulations specifically but on the history of young adults’ right to keep and bear arms generally.” The court then expressly held that “the right to keep and bear arms includes the right to purchase them.” “And thus,” says the court, “laws that burden the ability to purchase arms burden Second Amendment rights.” That last line is important. It seems to mean that, in most cases, commercial regulations of firearms will always get past step one of the two-part framework, notwithstanding Heller’s and McDonald’s assurances that those opinions did not call into question “laws imposing conditions and qualifications on the commercial sale of arms.”

With respect to historical evidence, the court laid out five data points that led it to conclude that this law burdens the right of young adults to keep and bear arms:

  1. “the tradition of young adults keeping and bearing arms is deep-rooted in English law and custom,”
  2. “the American colonists brought that tradition across the Atlantic: the colonial militias almost always included all men 18 and older, and other institutions involving keeping and bearing arms made it to our shores, too,”
  3. “at the time of the founding, all states required young adults to serve in the militia, and all states required young adults to acquire and possess their own firearms,” and the federal government did the same just after the founding,
  4. “both at the founding and later, different states had different ages of majority, and the age of majority also varied depending on the conduct at issue,” and
  5. in “the Reconstruction era, some states passed laws that regulated minors’ access to firearms, but most of them only regulated handguns, and only a few banned all sales of firearms to minors.”

The court then went through each point to adduce support for the conclusions it reached.

A few observations I had reading that evidence: the court relied on militia statutes that sometimes mandated service and weapon possession by young adults (and what we would today call non-adult teenagers, like those 16 and 17 years old) to support that those individuals had a right to possess those weapons. At a few points, the court relied on a dissent by Judge Edith Jones in a Fifth Circuit decision upholding a different restriction on the rights of young adults, writing that “[m]uch of Judge Jones’s historical analysis remains unrefuted,” and that “dissents from denial from rehearing en banc, such as the one written by Judge Jones, can be persuasive judicial guideposts.” In discussing laws after Reconstruction that restricted age-based purchases, the court noted that “cases from this time did not address the constitutionality of laws that regulated firearm ownership by young adults.” It seemed to take that as a sign that the issue was unsettled rather than—what seems equally an plausible inference to me—that those laws were widely seen as constitutional.

The court concluded from its historical overview that “the Second Amendment protects young adults’ right to keep and bear arms.” As the court put it, “The Second Amendment refers to the militia, and young adults had to be in the militia and bring their own firearms. This reference implies at least that young adults needed to have their own firearms.” Another similar observation: it’s remarkable to me to glean from these facts any inference about a right against the legislature. All those facts show is legal permission—and in some cases statutory mandate—for young adults to have guns. Without more argument, they don’t support the conclusion that young adults held rights to possess (or purchase) those guns. The court doesn’t make that argument, but instead rejects any notion that the rights of these young adults are connected to the militia because Heller declared the right to keep and bear arms to be independent of militia service.

The court then rejected historical evidence from the Reconstruction era about restrictions on young adults. “On top of the deeply offensive nature of many of them,” the court said, “nineteen out of twenty-eight banned only the sale of handguns, and California’s handgun ban is not at issue.” Only five states had complete bans on the sale of all firearms to minors.

Finally, as to counterarguments, the court rejected California’s argument that its laws were the kind of “conditions and qualifications on the commercial sale of arms” or “longstanding prohibitions on the possession of firearms” by certain groups that Heller saved. For the semiautomatic rifle restriction, the court said that was a prohibition, but not on a group that Heller enumerated. And, although the hunting license regulation was a condition or qualification on the commercial sale of arms, that did not mean it survived at step one. “Some presumptively lawful measures might burden conduct unprotected by the Second Amendment, while others might presumptively pass the applicable level of scrutiny.” And in this case, it said, the conduct was protected, so “[t]he Supreme Court’s observation in Heller is no obstacle to this holding.”

In discussing the second step of the inquiry, the court laid down some guideposts:

The historical analysis controls the first step of the inquiry but not the second. In applying a tier of scrutiny in the second step, we focus not on the historical record (i.e., what kinds of regulations were present at the founding), but on the gravity of the state’s interest (compelling/significant/legitimate) and the degree of tailoring between the regulation and that interest (narrow tailoring/reasonable fit/rational relation). In finding no burden on Second Amendment rights, the district court improperly relied on founding era regulations.

In applying that second part of the two-part framework, the court held that the district court correctly applied intermediate scrutiny to the hunting license regulation, but should have applied strict scrutiny to the semiautomatic rifle restriction. As to the former, because the law simply required a person to obtain a hunting license to purchase a long gun (other than a centerfire semiautomatic rifle), it wasn’t a significant burden. As to the latter, because a hunting license was not sufficient, “it is a blanket ban for everyone except police officers and servicemembers.” The court argued that the circuit has never applied intermediate scrutiny to a law like this before:

To the contrary, our cases applying intermediate scrutiny have dealt with two kinds of laws. First, we have applied intermediate scrutiny to laws that govern conduct outside the core of the Second Amendment because the actors are not ‘law-abiding, responsible citizens’ under Heller. This rule does not apply here. And second, we have applied intermediate scrutiny to laws that regulate either the way people can obtain or use firearms, or auxiliary features of those firearms.

(Citations omitted). The court emphasized that the law here “bans almost all young adults from having semiautomatic rifles.” In fact, the panel did something the Ninth Circuit en banc eschewed in the Peruta case when it considered the “cumulative effect” of California’s unchallenged handgun restriction for young adults. Adding that to the centerfire rifle restriction at issue, “[t]hat leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns,” all of which the court said were subpar self-defense alternatives.

Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.

(Footnote omitted). As legal scholar and expert on self-defense law Eric Ruben pointed out in a Twitter thread about the opinion, the court’s identified self-defense alternatives focus exclusively on what firearms could be used in self-defense, ignoring all nonfirearm “arms” and other means of self-defense, even though firearms are rarely used in self-defense situations.

Because this law impedes the easy availability of semiautomatic rifles, said the court, it imposes a severe burden. The ability of young adults to receive these rifles as gifts from family does not alleviate the burden because it “makes young adults’ Second Amendment rights conditional on the rights of others.” Nor do provisions allowing loans from other family members for temporary periods of time. And the fact that the restrictions lift when a person turns 21 has no bearing, the panel said, because even a temporary deprivation of a constitutional right is severe.

As should be clear from this analysis, the panel’s insistence that the restrictions on purchase (but not possession) constitutes a “ban” is almost the entire ballgame. As I’ve highlighted at least a few times on this blog, Joseph’s article, aptly called “Bans,” explains how and why courts make this characterization and what it triggers in constitutional adjudication. The Jones court is a good example: “this ban of semiautomatic rifles requires strict scrutiny, because handguns are already banned, and semiautomatic rifles are now effectively banned. That means two of the three types of effective self-defense firearms are banned, leaving young adults with limited or ineffective alternatives in many self-defense scenarios, and severely burdens their Second Amendment rights.” (Emphases added.) As the dissent points out, this law is much different from the ban addressed in Heller, where no one could possess a handgun in the home, for life, and characterizing this restriction as a ban leads right into the court’s conclusion that it violates the Second Amendment.

After declaring the appropriate level of scrutiny, the court’s applications were fairly straightforward. One argument that stood out to me, however, was the panel’s statement that—in thinking through what qualifies as a substantial/compelling government interest—public safety “is not a standalone government interest separate from the Second Amendment.” Remarkably, the court said that “[t]hough public safety is important, firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety.” It’s strange to suggest that firearms today pose the same level of threat to others as firearms did in 1791. As Darrell has written (and is writing more about), modern firearms are significantly more lethal.

I’m not sure what to make of the panel’s public safety argument, but if it suggests that public safety is not a legitimate government interest for enacting gun regulations, it’s both radical and radically ahistorical. But the panel is equivocal on that point, for it also says: “Thus, in the reasonable fit part of the analysis, the importance of the interest has no effect: once the interest is shown to be important, the question becomes whether the law is a reasonable fit. The importance of the interest cannot override Second Amendment rights.” It is hard for me to parse what these sentences mean. Nonetheless, the panel affirmed the district court’s conclusion that the hunting license regulation is a reasonable fit for the government’s interest and thus passes intermediate scrutiny.

But as to the semiautomatic rifle restriction, the panel faulted the district court for not using strict scrutiny and held, in the alternative, that the law would fail even under intermediate scrutiny. In this part of the analysis, the panel criticized the Ninth Circuit’s “cherry-picked formulation” of intermediate scrutiny that has “dispensed with the fit requirement.” It’s really a two-pronged formulation, said the panel: “This is the essence of the intermediate scrutiny test: the regulation must be a reasonable fit for the government’s stated objective, which means not just that it accomplishes something, but also that it does not burden far more speech than is necessary.” “When we omit the second part of the inquiry, we neglect to consider fit at all.” Quoting the Oxford Dictionary of English’s definition of “fit” the panel said: “a law is a good fit for a goal if it regulates only when it helps achieve that goal, and not in other instances. The more innocent conduct that is regulated, the less good a fit the law is. And conversely, sweeping in less innocent conduct makes for a better fit.” (I’ll admit it strikes me as a bit silly to use a dictionary not to help understand the terms of a constitutional provision or statutory text but to explain a word used in a doctrinal test created by the Supreme Court.)

On the question of the fit of the semiautomatic rifle restriction with California’s interests, the court analogized to Craig v. Boren, an equal protection case the Supreme Court decided under intermediate scrutiny (as did the majority in a now-vacated Fourth Circuit decision on a different firearm restriction for young adults). In Craig, the Court said the law was overbroad because it forbade all young adult males’ alcohol purchasing when only 2% of male young adults drove drunk. Bringing that statistical analysis over directly, the panel here said that only a small fraction of young adults misuse semiautomatic rifles (0.25% are arrested for violent crimes) and yet the law applies to all young adults. Yet, the panel cautioned, “[w]e establish no rigid statistical framework; we use a few numbers only to compare Craig v. Boren with this case, and to illustrate that the fit here is substantially more tenuous.” The court also acknowledged that the Second Amendment does not require individualized hearings, but it did say that “one way that states can improve regulations’ fit is by having exceptions or more individualized assessment.”

Judge Lee wrote a concurring opinion stating that the majority explained how “California’s law effectively banning the sale or transfer of semiautomatic firearms to young adults conflicts with the text, tradition, and history of the Second Amendment.” This is a curious way of putting it, since Judge Nelson didn’t even gesture in the way of the text, history, and tradition alternative test championed by many conservative judges, but applied the Ninth Circuit’s two-part framework to strike down the law. The history the majority outlined went only to part one of the framework, asking if the Second Amendment came into play, not the step two analysis. The main thrust of his concurrence, however, was to criticize a watered down version of intermediate scrutiny. “To accept the state’s argument would mean allowing the government to restrict individuals’ enumerated constitutional rights based solely on their group membership.” But, again, it’s curious to me to call “being an 18- to 20-year old” a “group” in any meaningful sense in which there’s membership. He added that “[y]oung adults have the same constitutional rights as the middle-aged or the elderly—even if some of them may not necessarily have the wisdom or judgment that age and experience can bring—for the same reason that we do not limit fundamental rights based on supposed intelligence, maturity, or other characteristics.” He concluded with an acknowledgment of the toll and tragedy of gun violence, but said that the statistics on gun misuse should “provide a perspective on whether we should restrict a constitutional right for the larger population based on a minuscule percentage of the populace who abuses that right.”

Judge Sidney Stein, a New York district judge sitting by designation, dissented. In his view, the lower court decision should have been affirmed in all respects. He particularly faulted the majority for “[n]eglecting consideration of either the disproportionate perpetration of violent crime by, or the relatively immature and variable cognitive development among, adults under age 21.” He also criticized the enunciation of a right to purchase guns: “I do not contest that the prohibition on FFLs selling semiautomatic rifles to young adults is directly tied to young adults’ ability to purchase semiautomatic rifles. However, while the Second Amendment right surely protects the right to possess and use firearms, the majority’s inferential leap to the assumption that it protects the right to purchase firearms goes too far.” And he rejected the majority’s characterization of the law as a ban, writing that it leaves open other mechanisms to acquire rifles (intrafamilial transfer, loans, etc.) and no prohibition on possession or use. Thus, he said, “to classify it as a ban without qualification is a patent misreading of the statutory text.”

One other critique I think worth highlighting is the dissent’s discussion of what the history can show: “historical review in line with an originalist understanding of constitutional rights tends to produce different interpretations and conclusions depending on the level of generality from which the analysis begins.” That criticism obviously has an impact not just on how these Second Amendment cases are discussed and debated, but the history and tradition at issue in Dobbs as well. (As Judge Sutton said in one of the circuit decisions on the Affordable Care Act’s individual mandate, “[l]evel of generality is destiny in interpretive disputes.”)

Although I disagree with much of the panel’s legal analysis, it strikes me as a mainstream, reasonable view of a contested question and, what’s more, as a decision vigorously vindicating Second Amendment rights that doesn’t resort to the vitriolic rhetoric and ad hominem attacks that I’ve criticized in other Second Amendment opinions (like Judge VanDyke’s recent separate opinion and Judge Benitez’s many opinions). I’ve said something similar about the serious tone of Judge Lee’s prior panel opinion affirming a Judge Benitez opinion and about other decisions vindicating Second Amendment rights, so my criticism of the tone of those other opinions isn’t because of the outcomes they reach, but the manner in which they go about doing so. Second Amendment doctrine is still in its infancy and the life and death stakes of litigation call for a seriousness that is often missing in some opinions by judges in the Ninth Circuit. Thankfully, no matter how one views the legal conclusion the panel reached here, this isn’t one of those rulings that lack seriousness.




Scholarship Highlight: New Research and Arguments about the Second Amendment

There’s been a spate of new Second Amendment scholarship, including a just published piece by the Center’s own Joseph Blocher (with co-author Eric Ruben). There are also a couple of wide-ranging student pieces skeptical about/supportive of different gun regulations.

  • Eric Ruben & Joseph Blocher, “Second-Class” Rhetoric, Ideology, and Doctrinal Change, 110 Geo. L.J. 613 (2022)

Abstract:

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as a matter of rhetoric. What do people mean when they allege that a constitutional right is subject to second-class treatment? What are the relevant audiences for these arguments? And how does such rhetoric travel throughout the legal system–from briefs, for example, into court opinions?

In this Article, we use Second Amendment litigation to illuminate the complex interplay between attorneys and judges invoking the second-class claim. After situating the second-class argument within the literature on law and rhetoric, we empirically investigate its development by isolating each use of second-class rhetoric in briefs and opinions in the decade following District of Columbia v. Heller. We show that the second-class argument is, indeed, increasingly prevalent in litigation as a justification for enhanced judicial protection of the Second Amendment. We also find support for the proposition that advocates use the second-class claim differently depending on the court they are in. Finally, we show how the second-class claim is ideological, appealing to a small but growing number of Republican-nominated judges. Our analysis provides a clearer picture of an increasingly common argument that has the potential to shape individual rights jurisprudence for years to come. And by illustrating a more nuanced picture of how a consequential legal argument operates on a rhetorical level, we hope to advance our understanding of how constitutional change happens.

  • Zachary S. Halpern, Young Guns: The Constitutionality of Raising the Minimum Purchase Age for Firearms to Twenty-One, 63 B.C. L. Rev. 1421 (2022)

Abstract:

In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny.

  • Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2 (2022)

From the Introduction (footnotes omitted):

There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them. Private firearms were very precise–much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded. The stock would be hand carved from wood. The firing mechanism would have to be fashioned from iron. And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building. Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts. They can also print firearms using one of many commercially available 3D printers. The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home. In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars. However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process, but this paper will focus on their Second Amendment implications.

Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

  • Laura E. Johnson, Mental Health History Is History: A Lifetime Ban on Gun Possession Due to History of Involuntary Commitment Violates the Second Amendment, 100 N.C. L. Rev. 919 (2022)

Abstract:

Gun control is a widely debated issue in the United States that often centers on whether restricting access to firearms will increase safety. What is often left undiscussed is the stigma and stereotypes that long-lasting bans on firearm possession have on those subjected to gun control laws. Section 922(g)(4) of the Gun Control Act imposes a lifetime ban on gun possession for persons who have a history of involuntary commitment. The Sixth and Ninth Circuits, in Tyler v. Hillsdale County and Mai v. United States, respectively, were asked to decide whether this lifetime ban violates the Second Amendment. Applying intermediate scrutiny, the Sixth Circuit said yes while the Ninth Circuit said no.

This Recent Development examines this resulting circuit split as well as the government’s justifications for § 922(g)(4)–preventing crime and suicide–and argues § 922(g)(4) fails to adequately address those important issues, making it unconstitutional under the Second Amendment. Section 922(g)(4) permanently categorizes those with a history of involuntary commitment as mentally ill, instead of addressing the real issue: keeping guns out of the hands of those who currently present a danger to themselves and others. Recognizing that the government’s interests are nevertheless important, this Recent Development proposes the adoption of a federal extreme risk law that adequately instills measures aimed to prevent crime and suicide while also protecting the rights of those subjected to involuntary commitment.

  • Leah Boston, Does the Second Amendment Entail the Right to Conceal Carry Firearms in Public for Self-Defense? The Proper Cause Issue Finally Addressed, 46 T. Marshall L. Rev. 135 (2022)

From the Introduction (footnotes omitted):

The year 2021 has been a long year for mass shootings, and it is not even halfway over. “18 weeks into 2021,” and the “U.S. has experienced 194 mass shootings,” averaging approximately ten per week. Not surprisingly, “by the end of [2020], at least 20 million guns” had been sold legally, increasing “12.4 million since 2019.” Along with this increase in gun sales, and in response to the death of George Floyd, 2020 saw “tens of thousands” protest and march in many cities around the U.S. The increase in gun sales and protests in the same year seems to correlate with the desire to arm oneself amidst the current events. Yet, Americans who favor some form of gun control are unlikely to see it depending on the state they live in.

America saw “its first significant form of gun control laws between the two World Wars”–an example of Congress’s constitutional authority to regulate. Congress has the power to write a uniform set of national regulations. “Once Congress exercises this right …, the states are constitutionally prohibited from adopting laws inconsistent with the federal” mandate. This is an example of federal preemption. Congress has the right to elect whether it will insert itself or delegate the responsibility to the states to regulate certain industries or activities. Regulation of the firearm industry is an example of Congress’s discretion. Congress has refrained from regulating the firearm industry exclusively, but it has not completely resigned its authority to the states. Instead, the states are free to regulate firearms alongside the federal government. Thus, when purchasing a firearm, an individual must comply with whichever law is the strictest. In turn, for gun rights advocates, states with stricter firearm laws may prove burdensome. Accordingly, firearm laws are frequently litigated. Thus, a possibly more conservative Supreme Court interpreting the Second Amendment is favorable for those who want limited firearm restriction. This paper will address our court systems’ different interpretations of the Second Amendment.

Part II will explain how the Supreme Court’s interpretation of the Second Amendment has evolved over time and will discuss a recent case that has caught the Court’s attention, N.Y. State Rifle & Pistol Ass’n v. Corlett. Part II will also discuss the New York state regulation at issue in that case. Part III will detail the circuit courts’ heavy divide over Second Amendment interpretations and this issue’s relation to the current makeup of the Supreme Court. This analysis will aid in predicting where each Justice stands on topics of the Second Amendment, firearm possession, and legislative gun regulation. Next, this paper will predict how the Supreme Court will rule on this basis. Finally, Part IV will suggest how the Supreme Court should rule in the Corlett case.




Scholarship Highlight: Impact of Rehaif on 922(g) Prosecutions

We’ve written a number of times about the Supreme Court’s 2019 decision in Rehaif v. United States and its aftermath. That decision requires the government to prove, in order to secure a conviction for unlawfully possessing firearms, that the defendant knew he belonged to the category of persons who is prohibited from possessing firearms. A fascinating new paper on SSRN by Matthew Mizel, Michael Serota, Jonathan Cantor, and Joshua Russell-Fritch finds that Rehaif actually does constrain prosecutors. In “Does Mens Rea Matter?” forthcoming in the Wisconsin Law Review, the authors empirically test the impact of the Rehaif decision on § 922(g) prosecutions.

Here’s the Abstract:

Does mens rea matter to the criminal legal system? Our study addresses this question by performing the first-ever empirical analysis of a culpable mental state’s impact on administration of a criminal statute. We focus on the U.S. Supreme Court’s 2019 decision in Rehaif v. United States, which applied a culpable knowledge requirement to the federal felon-in-possession statute, 18 U.S.C. § 922(g). Prior to Rehaif, federal courts uniformly treated the critical objective element under 922(g)—whether a firearm or ammunition possessor meets the conditions for one of nine prohibited legal categories—as a question of fact for which an actor could be held strictly liable. Adding a knowledge requirement to this element resulted in a significant decline in the likelihood of a defendant being charged with 922(g), the number of 922(g) charges per defendant, the total number of defendants charged with 922(g), and the total number of 922(g) charges filed each month. We estimate that these charging reductions prevented 2,365.32 convictions and eliminated 8,419.06 years of prison sentences for 922(g) violations during the eight-month period following issuance of the Rehaif opinion. At the same time, prosecutors were just as likely to secure convictions of those they charged with 922(g) after the Rehaif decision as they were before it. All told, our study suggests that adding culpable mental states to criminal statutes can meaningfully constrain prosecutorial discretion, lower convictions, and reduce punishment without bringing criminal administration to a halt.




Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System

Introduction

Justifiably, there has been considerable attention and focus by the public, scholars, policy makers, and criminal justice and public health practitioners on violent crimes involving firearms. However, much less attention has been paid to the crime of illegal possession of firearms. Part of this reflects dramatically different definitions of this behavior across the states given the variation in the requirements for concealed carry of a handgun, and thus what constitutes legal versus illegal possession or carrying. And while clearly the commission of a violent crime with a firearm versus the possession of a firearm by someone not licensed/permitted to do so are substantively different behaviors, often the term “gun crimes” conflates the two criminal offenses. This essay examines the issue of how illegal possession of a firearm is responded to by the justice system, with a focus on Illinois to illustrate some of these issues and how arrests and convictions for these offenses disproportionately impact Black men.

Violent Crime Committed with a Firearm (The Real Problem)

In 2019, it is estimated that there were more than 480,000 violent crimes committed with a firearm in the United States,[1] representing a 68% decrease when compared to 1993.[2] However, despite this dramatic decrease in the number of violent crimes committed with a firearm, the rate at which Blacks experience fatal and non-fatal firearm violence victimization remains significantly higher than that experienced by whites. In 2019, for example, the rate of non-fatal firearm violence victimization (i.e., robbery, assault/battery, rape) among Blacks was 287 per 100,000 population, more than double the rate of 134 per 100,000 among whites and similar to the 251 per 100,000 rate among Hispanics.[3] The racial disparity in firearm homicide victimization rates is even more pronounced nationally, with the 2019 rate for Blacks at 19.6 per 100,000, or 12-times higher than the rate of 1.6 per 100,000 population for whites and six-times higher than the rate of 3.8 per 100,000 among Hispanics.[4]

However, we also know that these rates vary considerably across individual states and communities within states. In, Illinois, for example, in 2019 the rate of firearm homicides among Blacks was 32.7 per 100,000, compared to 1.1 per 100,000 for whites and 4.3 per 100,000 among Hispanics.[5] Even more specifically, the rate of firearm homicides among Blacks in Cook County, Illinois (which includes Chicago) was 37.9 per 100,000 in 2019, 1.2 per 100,000 among whites, and 5.9 per 100,000 among Hispanics.[6] However, in 10 of Chicago’s 77 “community areas,”[7] the overall homicide rate in 2019 was over 50 per 100,000, and is even higher among Black men.[8]  Thus, when it comes to the highly publicized instances of firearm homicides, as well as the less publicized, but much more prevalent, non-fatal firearm victimizations, Blacks, and particularly young Black men, experience the highest rates of firearm violence, particularly in specific communities within large, urban areas.

Despite the seriousness of these violent crimes committed with a firearm, not only are a substantial portion not reported to the police, but of those that are reported to the police, most do not result in an arrest. For example, of the non-fatal violent crimes committed with a firearm in 2019 in the United States, 60% were reported to the police.[9] However, even when these crimes are reported to the police, in most instances they do not result in arrests. The Federal Bureau of Investigation estimated that in 2019 less than one-third of all aggravated assaults and robberies with a firearm in the United States were cleared by an arrest.[10] For the most serious form of gun violence—homicide—clearance rates tend to be higher than non-lethal violent firearm offenses, but are still low given the seriousness of the offense and relative to historic levels (i.e., clearance rates in 2020 were 54%, but exceeded 65% prior to 2000).[11]

Further, when it comes to responses by the justice system to gun violence, much of the focus has been on the sanctions that can be imposed on violent crimes committed with firearms. Examples of the more punitive sentences that can be imposed on violent crimes committed with a firearm include mandatory minimum prison sentences, sentencing enhancements when violent crimes are committed with a firearm (e.g., additional years added to a sentence when armed with a firearm or when a firearm is discharged during the commission of a crime), violent crimes committed with a firearm being subject to truth-in-sentencing, or three-strike/habitual offender laws, all of which are intended to increase the certainty and severity of punishment. Much of the response by legislatures, prosecutors and judges to violent crimes committed with a gun has been based on the understandable recognition that these violent crimes pose a significant danger to the public, and that those individuals who commit these offenses need to be incapacitated, punished, and not released until they no longer pose such a significant risk to public safety.

A Focus on Illegally Possessing Firearms

Given the limited degree to which the criminal justice system is able to apprehend and sanction those who commit violent crimes with a firearm, due to not all crimes being reported to the police and low clearance rates, the logical alternative is to find those who may be illegally possessing firearms under the view that some of them may be driving the gun violence problem. We saw similar thinking during the late 1980s and the war on drugs—those possessing drugs illegally may be drug dealers or may be driving violence, and thus, penalties associated with the illegal possession of drugs like cocaine, heroin and methamphetamine were increased. However, the justice system’s response to the illegal possession of a firearm, often lumped into the broad category of “gun crime,” is less well understood empirically. Further, while possession of a firearm is necessary to commit a violent crime with a gun, not all of those who possess a gun (either legally or illegally) intend to use it that way. While there has been a lot of research that has used gun confiscations (i.e., arresting people who illegally possess firearms) as an outcome measure in, for example, evaluations of hot-spot policing or assessment of the efficacy of stop-and-frisk practices, there is little research that has examined the characteristics of those arrested for illegal firearm possession, the sentences imposed on those convicted of these offenses, and subsequent recidivism patterns of those convicted.

Frequently these crimes are referred to as “unlawful use of a weapon,” or UUW, however, to many (particularly the general public) this terminology conflates possession with actually using a weapon to commit a violent crime. And while it is recognized that not all UUW offenses involve the illegal possession of a firearm, in many jurisdictions most crimes that fall into this category are in fact firearm possession crimes. In 2019, there were more than 153,000 arrests by state and local police departments in the United States for weapon offenses (i.e., UUW), 9% more than in 2014;[12] arrests by federal law enforcement agencies for weapon offenses, albeit much fewer, increased 67% between 2014 and 2019, reaching almost 12,000.[13] For context, while arrests by state and local police departments in the United States for UUW increased 9% between 2014 and 2019, arrests for all crimes combined fell 10% and arrests specifically for violent crimes remained essentially unchanged (falling 0.5%).[14] It is important for scholars to determine if this increase in arrests for weapon offenses reflects an increased focus by police on these types of crimes, an increased prevalence of the behavior (i.e., more illegal carrying of weapons), or a combination of both.

In addition to an increase in arrests, arrests for UUW are also much more likely to involve Black individuals than are arrests for other crimes; in 2019, 42% of all people arrested for weapon offenses in the United States were Black, while Blacks accounted for 37% of all arrests for serious violent crimes and 26% of arrests for all other offenses.[15] Again, trends in arrests for illegal possession of a firearm offenses likely differ from state to state, and community to community, as does the degree to which Blacks are overrepresented among those arrested. Research in Illinois found that while total statewide arrests for illegal firearm possession increased 70% between 2014 and 2019, specifically in Chicago (and Cook County) arrests for these offenses increased 85%, with much larger (and smaller) percent changes seen across other large jurisdictions in the state.[16] Throughout this period of increased arrests for illegal firearm possession were announcements by Chicago’s Mayor and Superintendent of Police regarding “crack downs” on illegal gun possession, suggesting the increase in arrests in Chicago were, at least partly, attributed to a greater focus by police on proactively looking for these crimes (i.e., through traffic stops and other on-view enforcement activity). In terms of the race of those arrested in Illinois, 79% of those arrested in Chicago (Cook County) were Black, compared to 54% of those arrested in the rest of Illinois for this offense being Black.[17] An even finer point, to illustrate the specific population most impacted by arrests for illegal firearm possession in Chicago (Cook County): 79% were Black, 92% were male, and 52% were between the ages of 18 and 24 (i.e., young, Black men).

Importantly, and as mentioned above, the legal criteria for what constitutes the offense of illegal possession of a firearm varies from state to state, depending on their laws regarding licensing of gun owners or licensing requirements for carrying a concealed handgun. In a state without licensing requirements for concealed carry of a handgun (i.e., permitless carry), what constitutes illegal possession is much narrower and more limited than a state that requires a permit in order to carry a concealed handgun. Thus, in a state like Illinois, where concealed carry requires both a Firearm Owners Identification (FOID) card (permit to purchase/own) and a concealed carry license (which requires training classes, registration, and fees) the opportunities to be found illegally possessing a firearm are greater than in states that do not require a permit to carry a concealed handgun. Currently, 21 states have no permit requirement,[18] and it is likely that, as a result, there is a lower rate of arrests for illegal possession of a firearm in these states. Thus, the degree to which individuals are arrested, convicted and sentenced for the illegal possession of a firearm will vary considerably from state to state given the differences in what is legal versus illegal from state to state.

In addition, the consequences of arrests for illegal possession of a firearm depend on state law, and are also influenced by local practices. How this behavior is legally classified in states ranges from misdemeanor-level to non-probationable felony crimes. In states where this crime is a felony, a conviction potentially has life-long consequences given the implications of having a felony conviction, including restrictions or limitations on an individual’s employment opportunities, voting rights, access to housing, and firearm ownership. In addition, whether or not a conviction for a felony firearm possession offense results in a sentence to prison will also vary from state to state, and county to county (or prosecutor’s office to prosecutor’s office). Indeed, even the degree to which the illegal possession of a firearm is viewed as a “crime of violence” varies from jurisdiction to jurisdiction, and practitioner to practitioner, but has obvious implications for how these offenses are viewed by practitioners as they make decisions regarding pre-trial release, charging, plea-bargaining and sentencing.

Illegal Firearm Possession as a(n imprecise) Proxy for Firearm Violence

Given the pressure for police to address gun violence in the communities most impacted, it is understandable that if police are unable to identify those committing fatal and non-fatal shootings, they would seek at least identify potential shooters by arresting those illegally possessing firearms. And if the police are going to focus on illegal firearm possession to address firearm violence, they will likely concentrate their efforts in the specific communities with the highest rates of gun violence. Illustrative of the impact of this pattern and approach, in Chicago there is a near perfect correlation between arrest rates for illegal firearm possession and rates of non-fatal violent crimes committed with a firearm across the 77 community areas in the city (Figure 1).[19] In other words, the communities with the highest rates of gun violence, which are also the communities where police and Black residents are most highly concentrated, experience the highest rates of arrests for illegal firearm possession. However, the analyses presented in Figure 1 also illustrates how in some communities the rate of arrests for illegal firearm possession actually exceeds the rate of fatal and non-fatal firearm shootings (i.e., the data points, which represent each of the 77 Chicago community areas, below the line are communities that had firearm possession arrest rates that were higher than the rate of fatal and non-fatal firearm shootings).

Figure 1: Rates of Fatal and Non-Fatal Firearm Shootings versus Rates of Arrests for Illegal Firearm Possession, by Chicago Community Areas, 2017-2019 Combined

Still, clearance rates for the actual violent crimes committed with a firearm remain low: in 2019, less than 10% of aggravated batteries and robberies with a firearm resulted in an arrest.[20] In addition, the means by which the police identify people illegally possessing firearms often rely on approaches—hot-spot policing, aggressive enforcement of traffic laws, and stop-and-frisk practices in communities with high rates of gun violence and large concentrations of Black residents—that have the potential of exacerbating distrust between police and minority communities. Further, in carrying out operations to increase arrests for illegal firearm possession, it is likely that police are casting a wide net—not all of those in a community who illegally possess firearms are doing so with the intent of committing violent crimes with a firearm. Indeed, given the high rates of violence, particularly gun violence, in these communities, it is understandable why those with the highest risk of victimization (young Black men) would perceive a benefit to carrying a firearm for self-protection. Research has consistently found that most people who own, and carry, firearms do so for personal protection, including those that have concealed carry licenses as well as those who may be prohibited from/not licensed to legally carry a concealed handgun. In many states, to obtain a concealed carry permit, and to therefore be legally compliant, involves a process (costs and submission of information to law enforcement) that many may not be an able to afford, or, more importantly, may not trust. For example, a survey by the Urban Institute of young people (aged 18 to 26) living in Chicago neighborhoods most impacted by violence, and almost all of whom were Black, found that while one‐third (32%) of the entire sample had carried a firearm illegally at some point in their lives, the prevalence was higher (50%) among males, and even higher among those who had been previously victimized. Almost all of those who reported having carried a firearm reported that self‐protection or to protect friends/family members was the reason for gun carrying. Among those respondents who reported carrying a firearm, the vast majority did not have strong perceptions of police legitimacy and did not perceive the police as effective at reducing crime.[21] Of all those arrested in Illinois for illegal possession of a firearm offenses between 2008 and 2019, it is estimated that just over one-third (35%) were older than 20 and had no prior conviction for a felony or a domestic violence offense (i.e., they did not have a disqualifier to applying for and obtain a concealed carry license in Illinois) and most were Black.[22]

Sentencing Those Convicted of Illegal Firearm Possession

Thus, we see nationally, and specifically in Illinois and Chicago, an increase in arrests for the illegal possession of firearm (i.e., UUW) in recent years that disproportionately impact individuals that are Black, and, as illustrated in Chicago, young Black men from specific neighborhoods with high rates of gun violence. How these arrests are responded to by prosecutors and the courts, however, is less well known. Nationally, the availability of data on sentencing those convicted of illegal possession of a firearm offenses is limited, and quite dated. The most recent nationally representative sample of sentencing outcomes for those convicted of a felony-level weapon offense (i.e., UUW) is 2006, and found that 45% of those convicted of a felony weapon offense were sentenced to prison.[23] A slightly more recent assessment of felony sentences imposed in large, urban counties in the United States found that in 2009, 53% of those convicted of a felony weapon offense were sentenced to prison.[24] However, as noted above, given the wide variation across states in what constitutes illegal firearm possession (i.e., differences in concealed carry requirements), and the degree to which those offenses are felony or misdemeanor crimes, understanding sentencing outcomes of these arrests requires a state by state examination to fully determine the influence of defendant, case, offense, and jurisdictional characteristics influence sentencing decisions.

Research performed in Illinois, and separately for Cook County (Chicago), found that changes to how the offense of illegal possession of a firearm is classified in state statute over time resulted in a dramatic increase in the likelihood of a prison sentence. Importantly, since 2011, almost all instances where a loaded handgun is carried, or accessible in a vehicle, without a concealed carry permit by someone without any prior convictions is a non-probationable felony (with a sentence of 1 to 3 years). When this law was signed into effect, Richard M. Daley, the Mayor of Chicago at the time and an advocate for the new legislation said “This legislation will reduce the threat of gun violence by sending a clear message that serious offenders will be held accountable and will not be let off scot-free as many of them have been in the past” (emphasis added).[25] Even more to the point, and illustrating the conflating of illegal firearm possession with the commission of violent crimes with a firearm, Ronald Holt, from the Chicago Police Department but also the parent of a son killed by gunfire stated “(This bill) sends a clear message to violent offenders that they will be dealt with to the fullest letter of this law, as punishment will be swift, severe and fair” (emphasis added).[26] Again, the law required a prison sentence for illegal gun possession by people without any prior convictions, and had nothing to do with violent crimes committed with a firearm, which already require prison sentences with potentially long sentences given the firearm sentencing enhancements in place.

However, despite these state laws, the application of the law appears to have primarily occurred in Chicago (Cook County). When the law requiring a prison sentence for those without a felony conviction, but illegally carrying a handgun, went into effect in 2011, sentencing patterns changed dramatically in Cook County (Chicago), but did not change at all outside of Cook County. In Cook County, the proportion of those convicted of this offense being sentenced to prison went from 30% in 2010 to 80% by 2013; outside of Cook County, the proportion of those convicted of this offense sentenced to prison remained at 30%. And although race did not influence whether or not those convicted of these offenses went to prison after controlling for other characteristics, such as age, gender, and prior arrests, the vast majority of those arrested, convicted and sentenced to prison were Black men.

In addition to mandatory prison sentences for those illegally possessing a handgun among those without prior felony convictions, over the past two decades in Illinois the sentencing for those with prior felony convictions that illegally possess firearms has also shifted to mandatory prison sentences (with longer maximums than other crimes in the same felony class). Since 2006, someone with a prior felony conviction for specific violent offenses, firearm possession offenses or specific drug-law violations who are subsequently in possession of a firearm are guilty of a non-probationable felony (with a sentence of 3 to 14 years), and since 2012 someone possessing a firearm with any prior felony conviction is also guilty of a non-probationable felony (with a sentence of 2 to 10 years). This change in 2012 was made despite the fact that most of those convicted of this offense were already being sentenced to prison, but this change resulted in all being sentenced to prison. Again, the vast majority of those convicted of the offense of a felon in possession of a firearm in Illinois were Black men in Chicago, and disproportionately from 11 specific neighborhood in the city.

In other words, as a result of these legislative changes, everyone who is arrested and convicted of illegally carrying a handgun in Illinois—primarily young, Black men in Chicago—is viewed as so dangerous that prison is seen as the only appropriate sentencing response. For those with felony convictions, it does not matter what the prior felony was for, how long ago the felony conviction occurred, or if the prior felony conviction indicated any propensity for violence. Among those convicted as a felon in possession of a firearm, the majority—74%—did not have any prior conviction for a violent felony offense. Rather, most were “felons” as a result of a prior conviction for drug-law violations, property crimes, or a prior illegal firearm possession offense.

Although there is limited, current national data on the sentencing of those convicted of illegal firearm possession offenses in the United States, it is possible to examine the number, trends and characteristics of those admitted to prison for these offenses (i.e., the illegal possession of, primarily, firearms, not the use of firearms in the commission of violent crimes). When looking at national trends, admissions to prison for these weapon offenses increased 9% between 2014 and 2019, while admissions for all non-weapon offenses fell 21% during that same time period.[27] These differential trends, for the most part, reflect trends seen in arrests, and are also consistent with the pattern in Illinois: more prison admissions for firearm possession offenses, but decreased admissions for all other crimes. Further, nationally, prison admissions for weapon offenses reflect an even higher degree of racial disparity than seen among arrests: Black individuals accounted for the majority (55%) of those admitted to prison for weapon offenses in 2019, but Blacks accounted for only 32% of prison admissions for all other offenses.[28]

Again, as a result of differences in state laws, policies and practices, the degree to which prison admissions are accounted for by weapon offenses varies. Illustrative of this variation, in 2019, weapon offenses (primarily illegal firearm possession) accounted for 5% of all prison admissions in the United States, however in states like California, New York and Illinois, 10% or more of the prison admissions were for these offenses. Even more specifically, a much larger share of prison admissions from large, urban counties are for weapon offenses. For example, in the 2018-2019 period, 21% of all prison admissions from Cook County (Chicago) were for weapon offenses, 17% of all prison admissions from Wayne County (Detroit) were for weapon offenses, and 13% of all prison admissions from Los Angeles County were for these crimes.[29] In fact, one out of every 10 (11%) prison admissions in the entire United States for weapon offenses in 2018-2019 were from just two counties, Cook and Los Angeles County, combined. Overall, the three states of California, Illinois and New York accounted for almost one-third (32%) of all prison admissions for weapon offenses in the United States in 2018-2019, but only 22% of the total U.S. population.[30]

Conclusions

There are a number of implications from the patterns and issues raised in this essay. First, there is little empirical research that has examined the extent and nature of arrests, convictions and the sentences imposed on individuals who illegally possess firearms. Determining the degree to which states with more restrictive policies regarding firearm ownership and possession/carrying are potentially exacerbating racial disparity among those on probation, parole or in prison, as well as the disparity with respect to felony records, is critical research needed to expand our understanding. Although Illinois, and Cook County (Chicago) is discussed in detail, the implications of the research findings from Illinois apply to any state where a first-time conviction for the crime of illegal possession of a firearm can result in a felony conviction, or requires the imposition of a mandatory prison sentence. Allowing for discretion, and basing this sentencing decision on more objective risk factors, would ensure that unnecessary incarceration of young Black men is avoided. Not classifying this behavior as a felony, which carries significant, long-term consequences would not only limit the use of incarceration (i.e., a jail sentence could still be imposed), but would also prevent a life-long felony record for behavior that may be motivated by fear of victimization and also disproportionately impacts Black men.

Indeed, even when mandatory prison sentences are in place for someone who possesses a firearm and has a prior felony conviction, it must be recognized that the offenses that constitute a felony vary from state to state, have changed significantly over time, and, as a result of the war on drugs and other factors, disproportionately impacts Black men. For example, during the 1960s when the federal Gun Control Act of 1968 was passed, it was estimated that roughly 10% of Blacks had a felony record, compared to roughly 2% of non-Blacks; by 2010, 23% of Blacks, 33% of Black men versus 6% of non-Blacks had a felony record.[31] Again, allowing discretion to determine who poses a risk to public safety, rather than solely being determined by a prior conviction that may have nothing to do with a propensity to commit violence, would avoid unnecessary incarceration that primarily impacts Black men. Ideally, any alternative to incarceration would involve services and programming that addresses risk of victimization, trauma resulting from experiencing or witnessing violent crime victimization, to reduce the need to illegally possess a firearm for self-protection.

Finally, it is important to use language and terminology that more accurately reflects the behavior of illegally possessing a firearm (i.e., unlawful use of a weapon), when the firearm is not actually used in the commission of a crime of violence. In Illinois, for example, the crime of carrying a concealed handgun without a license is referred to as “Aggravated Unlawful Use of Weapon,” and as described earlier, is a felony that carries a mandatory 1-3 year prison sentence. Rhetoric used by practitioners and policy makers that conflates illegal firearm possession with “gun crime” or “violent gun crime” further contributes to the public misunderstanding of what illegal possession of a firearm implies, and what might be the most appropriate legal responses. This conflation results in the view that increased enforcement of firearm possession in high crime communities is actually identifying those who are driving the gun violence in the community, as opposed to a wide net being cast that ends up including a mix of people who may potentially be committing gun violence but also potential victims seeking a means for self-protection.

Click here to view a PDF of this essay.

Cite as: David E. Olson, Illegal Firearm Possession: A Reflection on Policies and Practices that May Miss the Mark and Exacerbate Racial Disparity in the Justice System, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 19, 2022), https://firearmslaw.duke.edu/2022/01/illegal-firearm-possession-a-reflection-on-policies-and-practices-that-may-miss-the-mark-and-exacerbate-racial-disparity-in-the-justice-system.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Morgan, R. E. and Thompson, A. (2020): Criminal Victimization, 2020, U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cv20.pdf

[2] Data generated from the Bureau of Justice Statistics, National Crime Victimization Survey, 1993-2019. https://ncvs.bjs.ojp.gov/year-to-year-comparison/characteristic

[3] Author’s computations using data generated from the U.S. Department of Justice, Bureau of Justice Statistics National Crime Victimization Dashboard (https://ncvs.bjs.ojp.gov/Home#hometopHome) and race-specific population figures from Morgan and Thompson (2020).

[4] Data generated from the Center for Disease Control and Prevention’s Web-based Injury Statistics Query and Reporting System (WISQARS) at https://wisqars.cdc.gov/fatal-reports. Rates are for non-Hispanic Blacks and whites.

[5] Ibid.

[6] Author’s analyses of Cook County Medical Examiner’s Office data. See https://datacatalog.cookcountyil.gov/d/cjeq-bs86/visualization

[7] Community area’s in Chicago were “mapped out by two University of Chicago sociologists, Robert E. Park and Ernest Burgess, in the late 1920s, grouping together neighborhood and surrounding areas. Except for the addition of O’Hare in 1965 and Edgewater in 1980, the boundaries of these regions have been kept unchanged.” These 77 community areas consist of hundreds of individual neighborhoods. Description from the Chicago Studies College of the University of Chicago, retrieved from https://chicagostudies.uchicago.edu/neighborhoods. These community areas are still used today as a way of presenting information about the city, including crime rates.

[8] Data generated from the City of Chicago Violence Reduction Dashboard. See https://www.chicago.gov/city/en/sites/vrd/home.html

[9] Morgan and Thompson (2020).

[10] Federal Bureau of Investigation (2020): Crime in the United States, 2019. U.S. Department of Justice retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-27

[11] See Murder Accountability Project web-site at https://www.murderdata.org

[12] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[13] Author’s analyses of arrest figures published through the Federal Justice Statistics Program: see https://bjs.ojp.gov/data-collection/federal-justice-statistics-program-fjsp#publications .

[14] Author’s analyses of arrest estimates produced annually by the Federal Bureau of Investigation and published in their annual Crime in the United States series.

[15] Ibid.

[16] Olson, D.E., Stemen, D., Foust, K., Guzman, C., Jacobs, L., Juarez, S., Michalak, H., Pankratz, A., Ward, A. (2021). Sentences Imposed on Those Convicted of Felony Illegal Possession of a Firearm in Illinois: Examining the Characteristics and Trends in Sentences for Illegal Possession of a Firearm. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf

[17] Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Guzman, C., Ward, A., and Jacobs, L. (2020). Arrests in Cook County for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/CookCountygunpossessionbulletindecember2020.pdf

[18] Vasilogambros, M. (2021): No Permit, No Problem: More States Allow Residents to Carry a Hidden Gun. December 6, 2021. Pew Stateline. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/12/06/no-permit-no-problem-more-states-allow-residents-to-carry-a-hidden-gun

[19] Illustrative of the near perfect correlation is a Pearson’s r statistic of .94 based on the author’s analyses of these data.

[20] Author’s analysis of Chicago Police Department data available through Chicago’s on-line data portal at https://data.cityofchicago.org/Public-Safety/Crimes-2021/dwme-t96c

[21] Fontaine, J., La Vigne, N., Leitson, D., Erondu, N., Okeke, C., and Dwivedi, A. (2018): We Carry Guns to Stay Safe: Perspectives on Guns and Gun Violence from Young Adults Living in Chicago’s West and South Sides. Washington, DC: Urban Institute. Retrieved from: https://www.urban.org/sites/default/files/publication/99091/we_carry_guns_to_stay_safe_1.pdf

[22] Author’s analyses of data obtained for Loyola’s study of those arrested for gun crimes in Illinois; Olson, D.E., Stemen, D., Michalak, H., Juarez, S., Ward, A., and Jacobs, L. (2020). Arrests in Illinois for Illegal Possession of a Firearm: Examining the Characteristics and Trends in Arrests for Illegal Possession of a Firearm within the Context of Crimes Involving Guns. Center for Criminal Justice Research, Policy and Practice. Center for Criminal Justice Research, Policy and Practice, Loyola University Chicago. See https://www.luc.edu/media/lucedu/ccj/pdfs/IllinoisGunPosessionArrestBulletinjuly2020[9718].pdf   

[23] Rosenmerkel, Sean, Durose, Matthew, and Farole, Donald (2009): Felony Sentences in State Courts,2006-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fssc06st.pdf

[24] Reaves, B. A. (2013): Felony Defendants in Large Urban Counties, 2009-Statistical Tables. U.S. Department of Justice, Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/fdluc09.pdf

[25] Governor Quinn Signs Legislation to Reduce Gun Violence, Press Release, July 19, 2010. Retrieved from https://www.illinois.gov/news/press-release.8651.html

[26] Ibid.

[27] Author’s analyses of data obtained through the National Corrections Reporting Program (NCRP): United States. Bureau of Justice Statistics. National Corrections Reporting Program, 2000-2019. Inter-university Consortium for Political and Social Research, 2021-07-15. https://doi.org/10.3886/ICPSR38047.v1

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Shannon, S.K.S., Uggen, C., Schnittker, J., Thompson, M., Wakefield, S., and Massoglia, M. (2017): The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948-2010. Demography, 54: 1795-1818.




“The People”, Citizenship, and Firearms

The relationship between citizenship and gun rights continues to vex federal courts.[1] In turn, the answer to whether gun rights are citizen-only rights implicates other core constitutional protections. Accordingly, courts and commentators must critically re-examine the alarming judicial trend towards excluding noncitizens from the ambit of the Second Amendment.

The Court’s 2008 District of Columbia v. Heller opinion ignited this controversy when it – by fiat and without explanation – equated the “the people” protected by the second amendment with “law-abiding citizens”, “Americans,” and “members of the political community”.[2] Heller’s simultaneous expansion of the scope of the substantive right, while narrowing the class to whom it inures, has generated opinions from seven separate courts of appeals over the past nine years.[3] In each, unlawfully present noncitizens or nonimmigrants challenged the constitutionality of 18 USC § 922(g)(5), which criminalizes firearm and ammunition possession by persons without lawful status as well as most classes of nonimmigrants.[4] And, in each, federal courts uniformly upheld the provision against constitutional challenges. Surveying those opinions, judges either replicated Heller’s untheorized limitations on “the people”, or sidestepped it, only to accomplish the same result by trading on notions of immigrant criminality and lawlessness. Indeed, at least one appellate court rejected the noncitizen’s claim under circumstances that implicate Heller’s paradigm firearms use-case: Brandishing a firearm in defense of others at a home.[5]

This essay calls attention to the reasoning in the appellate court cases that have wrestled with Heller’s irresponsible citizenship talk.[6] By upholding § 922(g)(5), those courts permit the federal government to continue to bar several million people from exercising a right that Heller jealously guards for citizens. Moreover, if Heller’s rationale is taken to its limits, Congress could expand federal law’s reach beyond unauthorized and temporary migrants, to exclude lawful permanent residents as well, thus making criminal prohibitions coterminous with current deportation law based on firearms violations.[7] To be clear, the stakes here are not just about gun rights; noncitizens likely are less interested in possessing guns than U.S. citizens, as most hail from countries with rules and norms against personal firearm possession. Beyond arms bearing, categorically excluding noncitizens from “the people” of the Second Amendment entrenches and normalizes the denial of other critical constitutional protections to noncitizens.

In some of these post-Heller cases, judges double-downed on Heller’s citizenship specification.[8] In other work, I have chronicled the textual, doctrinal, and historical concerns with equating “the people” in the constitution with citizens.[9]  In brief, as a textual matter, such an interpretation is hard to square with the Constitution’s explicit use of the word “citizen” and “citizenship” in various provisions, as well its grant of power to Congress to transition noncitizens into citizens through naturalization. The Second Amendment however – like the Preamble, and First, Fourth, Ninth, and Tenth Amendments – references a more nebulous “the people.” Those references have generally been understood to be evocative of an unspecified collective, rather than denote citizenship status. Of course, it might be that the Second Amendment necessitates a different and more circumscribed definition than the phrase as used in other constitutional clauses. Yet, the campaign to divorce the right to bear arms from service to, or protection from, the state suggests exactly the opposite: That the Second Amendment is not to be interpreted differently than other constitutional protections.

As a doctrinal matter, United States v. Verdugo-Urquidez is the only modern case with an extended focus on “the people.”[10] There, the Court declined to allow a noncitizen brought into the U.S. for criminal proceedings to raise a Fourth Amendment challenge to the search of his home in Mexico by U.S. and Mexican authorities. Even so, the majority declined to limit “the people” protected against unreasonable searches and seizures to citizens. Instead, it described “the people” as referring to those with “who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community” (emphasis added). This nebulous and indeterminate formulation rejects the idea that constitutional rights turn on immigration status alone. Heller conspicuously substitutes the phrase “political” for “national”, contradicting Verdugo-Urquidez while claiming to affirm it.

Finally, many historical exclusions of foreigners from gun rights were premised on loyalty concerns during wartime, or along expressly racial lines.[11] Indeed, the most prominent linkage of gun rights to citizenship finds voice in the anti-canonical case of Dred Scott v. Sandford. The Dred Scott Court narrowed several important constitutional protections to citizens, but only by conjuring the transitive relationship between citizenship, race, and constitutional rights (including gun rights).[12] 

Perhaps because Heller’s narrowing of “the people” is so thinly or odiously supported, other appellate courts confronted with the constitutionality of § 922(g)(5) have instead assumed noncitizens (including unauthorized noncitizens) can raise Second Amendment challenges.[13] Nevertheless, they upheld the provision by purporting to apply the type of scrutiny courts have applied to other regulations in the wake of Heller. With various formulations, lower federal courts have evaluated firearms and ammunition regulations under heightened scrutiny, toggling between strict and intermediate scrutiny depending on the nature of the restriction.[14] Invoking those judicial tests, these opinions held that because the noncitizens covered in 922(g)(5) were not “law-abiding”, Congress could criminalize their possession of firearms or ammunition.

This alternate approach is beset by its own doctrinal and conceptual difficulties. Primarily, it allows the government to trade on innuendo about immigrant criminality and tendency to lawless behavior. Moreover, by defining millions of noncitizens as lawless, this tack amounts to the same as equating “the people” with “citizens” for purposes of assessing §922(g)(5). In sum, although these opinions purport to apply a more nuanced approach, they still categorically exclude the same millions of individuals from second amendment protection.

First, as a doctrinal matter, the type of ends-means fit in the courts’ analyses does not resemble the heightened scrutiny used in other areas of constitutional analysis. Rather than require substantiation of the claim that unauthorized noncitizens are not – as a class – law-abiding in ways that relate to gun possession, these opinions indulge Congress’ judgment about the dangerousness or tendency to lawlessness of persons lacking lawful or permanent immigration status.[15] But that form of deference, and its tendency to relieve the government of its burden, are precisely what heightened scrutiny is intended to reject. In an opinion concurring in judgment with the Second Circuit panel in United States v. Perez, Judge Menashi sharply critiqued the panel precisely for this slippage into deferential rationality review under the guise of heightened scrutiny.[16]

Indeed, a more faithful application of heightened scrutiny would have to contend with two concerns. First, available empirical evidence suggests that noncitizens – including unlawfully present noncitizens – are less likely to commit crimes, including violent crimes, than native born.[17] Second, unlawful presence, by itself, is legally distinct from the “long-standing” exclusions Heller purports to permit for “felons and the mentally-ill.” Unlawful presence is not a criminal violation, let alone a felony. If the legal violation of unlawful presence is sufficient to make that connection, the government’s ability to exclude several classes of persons – both citizens and noncitizens – with prior administrative or civil violations would be greatly expanded.[18] Other opinions avoid reliance on status alone, but suggest that the nature of unlawful presence makes those individuals more likely to evade detection and thus harder to identify and track.[19] While such justification is not implausible, heightened scrutiny requires more of the government than articulating any conceivable, post-hoc rationale. Further, treating unlawful status as dispositive fails to account for the potential fluidity of that status, including the multiple possibilities for an unauthorized noncitizen to obtain lawful permanent residency, and eventually, citizenship.

Perhaps recognizing the obvious frailty of equating unlawful presence with the type of lawlessness relevant to firearms possession, some appellate judges attempted to finesse the connection between immigrants and criminality by featuring the criminal background of the noncitizen-defendant. For example, some opinions mention possible prior gang affiliations or surface uncharged criminal allegations. But, if unlawful status itself triggers the exclusion (as these opinions suggest), such biographical details are extraneous, and appear designed solely to paint the noncitizens as inherently dangerous in ways relevant to firearms possession. In comparison, a noncitizen’s lack of criminal history,[20] use of firearms for work purposes,[21] possession of minimal amounts of ammunition without a gun,[22] or use of a firearm in defense[23] failed to mitigate or overcome the deficit created by immigration status alone. This divergent treatment of defendants’ prior history indicates that for noncitizens, criminal background is a one-way ratchet, only useful when it can help courts link immigrant status implicitly to violent criminality.

In sum, the current judicial approaches to this set of post-Heller cases – one that narrows “the people” and the other that hyperbolizes the lawlessness of unauthorized noncitizens – are blinkered interpretations of the Second Amendment.

To be clear, although I argue that these rationales are untenable, I do not approach this debate with a deregulatory agenda regarding firearms. My central concern is the way in which these interpretations facilitate the general degradation of constitutional rights for the tens of millions of noncitizens in our polity. Heller’s irresponsible talk of citizens, and the subsequent lower courts that have uncritically adopted it, threaten to widen that inequity if left unchecked. The narrowing of Second Amendment rights normalizes a decades long project by some federal judges, like Justice Alito, incrementally to strip noncitizens of other vital constitutional protections.[24] My examination of this less-heralded set of post-Heller Second Amendment cases shines a light on that exclusionary campaign.

Click here to view a PDF of this essay. 

Cite as: Pratheepan Gulasekaram,“The People”, Citizenship, and Firearms, Duke Ctr. For Firearms L.: Second Thoughts Blog (Jan. 13, 2022), https://firearmslaw.duke.edu/2022/01/the-people-citizenship-and-firearms.

 

[Ed. note: This essay is part of a collection of writings from the Center’s 2021 roundtable on Race and Guns in America.]

 

Notes

[1] Here, I use the term citizenship in the legal sense, differentiating between “citizens” and “non-citizens” as a citizenship or immigration status. Citizenship may also be used in the broader sense, to connote full and complete forms of membership versus “second-class” citizenship, in which those with the status of citizenship are nevertheless treated as less than full members of a polity. Although my perspective here has implications for the latter, I am centrally concerned with the former.

[2] 554 U.S. 570, 580-81, 584, (2008).

[3] United States v. Perez, 6 F.4th 448 (2d Cir. July 29, 2021); United States v. Torres, 911 F.3d 1253 (9th Cir. 2019); United States v. Meza-Rodriguez, 798 F.3d 664 (7th Cir.2015); United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012); United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011). These challenges all involved unlawfully present noncitizens. One other opinion from the Ninth Circuit Court of Appeals, United States v. Singh, 979 F.3d 697 (9th Cir. 2020), upheld the federal law against a challenge by a nonimmigrant.

[4] 18 U.S.C. § 922(g)(5) (“It shall be unlawful for any person, who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa…..”). The term “nonimmigrant” under federal immigration law means noncitizens lawfully present in the United States for limited duration and/or for a specific purpose; under the statute, “immigrant” refers to lawful permanent residents (green card holders). 8 U.S.C. § 1101(a)(15). The exception in 18 U.S.C. § 922(y)(2) referenced in § 922(g)(5)(B) exempts nonimmigrants who have been admitted for hunting or sporting purposes, or others with a permit for carrying a firearm.

[5] See, e.g., Perez, 6 F.4th at 449-50 (noting, in recitation of facts, that unlawfully present noncitizen borrowed a firearm to deter a group of armed individuals approaching a gathering at a private home).

[6] See Joseph Blocher, United States v. Perez and Doctrinal Development, Duke Center for Firearms Law Blog, Sep. 15, 2021.

[7] 8 U.S.C. § 1227(a)(2)(B) (classifying “any alien” convicted of any firearms law as potentially deportable).

[8] See Portillo-Munoz, 643 F.3d at 442 (holding that “the people” did not include unlawfully present noncitizens); accord, Flores, 663 F.3d at 1023 (citing Portillo-Munoz); Perez, 6 F.4th at 456 (Menashi, J., concurring) (concluding that unlawfully present noncitizen could not raise a Second Amendment claim).

[9] My prior work has critiqued this interpretative move as incompatible with an individual right/self-defense reading. I concluded that that either the amendment is connected to state defense or defense from the state, in which case courts may plausibly limit the right to bear arms to citizens, or the right is truly centered on individual self-defense, rendering categorical prohibitions based on immigration status difficult to justify. See Gulasekaram, Guns and Membership in the American Polity, 21 Wm. & Mary B Rights J. 619 (2012); “The People” of the Second Amendment, 85 N.Y.U. L. Rev. 101 (2010); Aliens with Guns, 92 Iowa L. Rev. 891 (2007).

[10] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (denying, on the grounds that he was not part of “the people” of the Fourth Amendment, a Mexican national’s right to raise a Fourth Amendment challenge to search of his residence in Mexico by U.S. and Mexican law enforcement during his prosecution in U.S. federal court).

[11] See, e.g., Angela R. Riley, Indians and Guns, 100 Geo. L. J. 1675 (2012); Robert Churchill, Gun Regulation, the Police Power, and the Right to keep Arms in Early America, 25 Law & Hist. Rev. 139 (2007); Saul Cornell & Nathan DeNino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev.487 (2004) (noting firearms laws conditioned on loyalty oaths, and concerning possession by particular religious minorities); Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comment. 221 (1999); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998); Lee Kennett & James LaVerne Anderson, The Gun in America: The Origins of a National Dilemma (1975)

[12] Dred Scott v. Sandford, 60 U.S. 393, 416-17 (1856):

“For if [‘members of the African race’] were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” (emphasis added)

[13] Perez, 6 F.4th at 453 (opining that there was no definitive answer to whether unlawfully present noncitizens were excluded from “the people”, and instead assuming, without deciding, that such noncitizens could raise Second Amendment challenges); accord, Torres, 911 F.3d at 1261; Meza-Rodriguez, 798 F.3d at 670; Huitron-Guizar, 678 F.3d at 1168.

[14] See, e.g., Perez, 6 F.4th at 453-54.

[15] See, e.g., Torres, 911 F.3d at 1264.

[16] Perez, 6 F.4th at 457, 459 (Menashi, J. concurring in judgment) (arguing that the majority is “watering down” intermediate scrutiny, and critiquing the majority’s deference to Congress’ policy judgments and assumptions regarding a conclusion that may end up being false).

[17] Ruben Rumbaut, Katie Dingeman, Anthony Robles, Immigration and Crime and the Criminalization of Immigration, in Routledge International Handbook of Migration Studies (Gold & Nawyn, eds. 2018). Note that one does not need to rely on the particular conclusions of this research; for purposes of my critique, the critical question is whether such empirical evidence should matter to courts engaged in forms of heightened scrutiny.

[18] Of course, illegal entry can be charged as a misdemeanor, and illegal re-entry can be charged as a low-level felony. But even under those circumstances, Congress does not always consider those immigration crimes to be persistent legal disabilities. In the past, federal deportation law included a statute of limitations, such that unlawful entry could not be charged after five years and the person could not be removed. Even today, the immigration code provides several statutory basis for overcoming unlawful status, including through unlawful entry, and regularizing immigration status and later, naturalizing.

[19] See, e.g., Torres, 911 F.3d at 1264.

[20] See e.g., Meza-Rodriguez, 798 F.3d at 666 (not mentioning criminal history apart from incident giving rise to §922(g)(5) prosecution); Portillo-Munoz, 643 F.3d at 439 (noting that noncitizen’s presentence report did not report any prior criminal history or arrests).

[21] Portillo-Munoz, 643 f.3d at 439 (prosecution of noncitizen working on ranch who stated that he possessed firearm to protect chickens from coyotes).

[22] Meza-Rodriguez, 798 F.3d at 666 (prosecution based on possession of a .22 caliber cartridge).

[23] Perez, 6 F.4th at 450 (prosecution of noncitizen brandishing firearm to deter armed intruders)

[24] Thuraisiggiam v. Dep’t of Homeland Security, 140 S.Ct. 1959 (2020) (Alito, J.) (denying habeas and due process rights to unlawfully present person in expedited removal proceedings); Kansas v. Garcia, 140 S.Ct. 791 (2020) (Alito, J.) (upholding state criminal prosecution of noncitizens for fraud in employment procurement against preemption challenge); Hernandez v. Mesa, 140 S.Ct. 735 (2020) (Alito, J.) (refusing to extend Bivens to claim of parents of a Mexican child who shot and killed by U.S. Border Patrol agent who fired across the border at the child); Jennings v. Rodriguez, 138 S.Ct. 830 (2018) (Alito, J.) (casting doubt on due process challenges to immigrant detention without bond)




New RAND Report on Gun Policy Disagreement

The RAND Corporation just released a new report, The Magnitude and Sources of Disagreement Among Gun Policy Experts. Both Center faculty co-directors, Joseph Blocher and Darrell Miller, participated as experts. The Report’s key findings include: (1) experts were divided on whether they favored more permissive or less permissive policies, with sharp differences on select laws like assault weapon bans, gun licensing, and registration, (2) not all policies generated such diametrically opposed views; many experts agreed on largely law enforcement solutions like various prohibitor possessor laws and also child access prevention laws, and (3) experts prioritized laws that would reduce firearm homicides and suicides, suggesting that more evidence on different proposals’ effectiveness could generate more agreement. 

Here’s the overview of the Report: 

The effects of firearm policies, though frequently debated, have historically received less-rigorous scientific evaluation than have the effects of other policies affecting public safety, health, and recreation. Despite improvements in recent years, there is still limited evidence of how some gun policies that are frequently proposed or enacted in the United States are likely to affect important outcomes (such as firearm homicides, property crime, and the right to bear arms). In areas without strong scientific evidence, policymakers and the public rely heavily on what policy advocates or social scientists believe the effects are most likely to be.

In this report, part of the RAND Gun Policy in America initiative, RAND researchers describe the combined results from two fieldings (2016 and 2020) of a survey of gun policy experts. Respondents were asked to estimate the likely effects of 19 gun policies on ten outcomes. The researchers use these and other responses to establish the diversity of beliefs among gun policy experts, assess where experts are in more or less agreement on the effects of gun laws, and evaluate whether differences in the policies favored by experts result from differences in experts’ assumptions about the policies’ effects or differences in experts’ policy objectives. The analysis suggests that experts on different sides of the gun policy debate share some objectives but disagree on which policies will achieve those objectives. Therefore, collecting stronger evidence about the true effects of policies is, the researchers believe, a necessary step toward building greater consensus on which policies to pursue.




Scholarship Highlight: Felons, Bump Stocks, and More

Here are some new and interesting firearms law and adjacent pieces of scholarship published recently, including some really insightful student notes and an especially timely and in-depth look at the bump stock ban.

From the Introduction:

If a law professor dreamed of a case that could touch on the most substantial issues taught in administrative law classes, he would dream of Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives. The case runs the gauntlet, featuring issues of statutory construction and deference, the procedural requirements under the Administrative Procedures Act (“APA”), the Appointments Clause and statutory conflicts between vacancy statutes, standing, exceptions to Chevron deference including questions of waiver, and allusions to many more textbook issues. Because some of these issues are less settled than others, a companion case–Aposhian v. Barr, features some alternative outcomes such as the lower court characterization of the agency action at issue as interpretive, in opposition to the preliminary findings in Guedes, where the court held the Bump-Stock Rule was legislative. Both cases reviewed challenges to a final rule published by the Department of Justice and Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). When the Supreme Court denied a writ of certiorari for injunctive relief in Guedes, one Supreme Court Justice issued a statement raising more administrative law questions and challenging some administrative law presumptions that, if borne out, could further unsettle substantial administrative law issues.

At the heart of the dream case lies a dispute over the definition of “machine gun” and a rule promulgated by the agency to clarify the meaning of two terms contained in the statutory definition that are not otherwise defined. This article attempts to address all of the major administrative law issues raised in Guedes and their potential outcomes by walking through a Chevron analysis, starting with (1) whether the Bump-Stock Rule satisfies Chevron step zero, then looking at (2) whether any exceptions prevent the application of Chevron, and ending with (3) whether the Bump-Stock Rule satisfies the test in Chevron, thus warranting Chevron deference. Under existing precedent, Chevron deference applies to the Bump-Stock Rule. This article tries, however, to anticipate the nuanced (or watershed) deviations at each stage of the analytical process that present themselves to the Supreme Court if either case (or both) come before the Court on their merits.

From the Abstract:

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to the Civil Rights Movement. Next, Part II outlines the ways different circuits have interpreted § 924(c), demonstrating how those interpretations disadvantage Black defendants. Finally, Part III puts forth two proposals for reform: interpreting § 924(c) more narrowly, or simply removing the language at issue from the GCA. These reforms would reduce racial disparities in the enforcement of § 924(c). They would also reaffirm the right of Black Americans to keep and bear arms for self-defense.

From the Abstract:

The scope of government restrictions on the sale, possession, and use of firearms is currently one of the most hotly contested political issues facing the United States. Opponents of gun control legislation argue that stringent government restrictions on firearms violate the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed.” In contrast, proponents of gun control legislation argue that vigorous restrictions on firearms are essential to maintain public safety and curtail gun violence.

Despite being at the forefront of political debate, the Supreme Court speaks infrequently on the scope of the Second Amendment, having only published three Second Amendment opinions. Because of the Court’s silence on the scope of the Second Amendment, the circuit courts of appeals have struggled with Second Amendment issues.

One such Second Amendment issue that has confounded the circuit courts of appeals is the validity of as-applied challenges to 18 U.S.C. § 922(g)(1), the federal law that makes it unlawful for persons convicted of a felony to possess, purchase, or sell a firearm. Every circuit court has  upheld 18 U.S.C. § 922(g)(1) on its face. A circuit split, however, continues to persist on the issue of whether a convicted felon can challenge the law as unconstitutional when applied to the individual’s specific circumstances.

This circuit split has led to inconsistent application of § 922(g)(1). Because the circuit split surrounding § 922(g)(1) leads to inconsistent application of the felon-in-possession prohibition, as-applied challenges should not be entertained. Not only is this consistent with the Supreme Court’s Second Amendment jurisprudence, but as-applied challenges should also always fail the two-step analytical framework used by most circuits. Furthermore, by not entertaining as-applied challenges, 18 U.S.C. § 922(g)(1) will be applied consistently and fairly across the United States.

From the Abstract:

Federal circuit courts of appeal often disagree about how to interpret the United States Sentencing Guidelines. One contentious guideline is the physical restraint sentencing enhancement. This enhancement increases the sentence of a defendant who physically restrained a victim during a crime. Circuit courts disagree about whether to apply this enhancement to a defendant who points a gun at a victim and tells that victim not to move. Four circuit courts interpret the physical restraint enhancement narrowly and only apply it when a defendant does something highly similar to tying or locking up a victim. Three circuits interpret the enhancement very broadly and uphold the enhancement’s imposition on defendants who do no more than point a gun and instruct a victim not to move. Three other circuits interpret the enhancement broadly but have not explicitly ruled on whether it applies to a defendant who brandishes a firearm and issues a threat. Two circuits take an approach between the other circuits. This Note argues that the text of the enhancement, the relevant commentary in the Guidelines, existing sentencing options, and the American judicial system’s preference for liberty require a narrow interpretation of the physical restraint enhancement. Courts should only apply the enhancement when a defendant restrains a victim by applying force that touches the victim or by confining the victim in a space that appears locked. Regardless of which interpretation is currently correct, the U.S. Sentencing Commission should clarify this issue.




Range v. Lombardo: Is the Third Circuit’s Approach to As-Applied Challenges Too Messy?

In the recent case Range v. Lombardo, a federal district court in Pennsylvania rejected an as-applied Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. §922(g)(1). The case is significant for understanding the Third Circuit’s evolving approach to Second Amendment challenges; it also highlights the conceptual quagmire of applying Second Amendment protections (or not applying statutory prohibited person status) to those with convictions for nonviolent felonies or misdemeanors. The teacher in me loves this case because it is clear enough to be useful for teaching law students about how courts wrestle with multi-factor tests, tiers of scrutiny, shifting burdens of proof, and 50-state statutory comparisons to ascertain a “consensus” view – sometimes all at once.  Note that this case was an action for declaratory judgment rather than a criminal prosecution.

Bryan Range is what lawyers call a “sympathetic plaintiff.” In 1995, he pled guilty to one charge of making a false statement (an omission, in fact) on an application to receive food stamp assistance.  At the time, Range was supporting his wife and three children by mowing lawns (earning ~$300/week).  His wife applied for food stamps, a need-based government assistance program, but when she completed the application form, she did not include her husband’s meager income from mowing lawns.  Both spouses signed the application, though Mr. Range later claimed he did not read it before signing it.  Nevertheless, when the government agency discovered the omission, Mr. Range accepted responsibility and acknowledged that it was wrong to understate the family’s income.  The state charged Mr. Range, but not his wife, with Pennsylvania’s version of welfare fraud, which at the time was a first-degree misdemeanor carrying a potential sentence of 5 years imprisonment.  As part of his plea agreement, the court sentenced Range to three years’ probation and nearly $3000 in restitution, fines, and costs (but no jail time).  The judge did not tell Range that he would be ineligible to own a firearm as a result.  In the years since, Range had no other criminal history apart from minor traffic and parking infractions and an overdue fee on his fishing license. 

At some point, Range tried to buy a firearm from a licensed dealer, but the background check system denied the purchase; the store employee guessed that it must be a “computer error” and suggested he try again another day.  Instead, his wife, who had no criminal record, bought a hunting rifle, and gifted it to her husband.  A few years later, Range again tried to buy a gun from a local dealer, again failed the background check, and received the same explanation (“…probably a computer error…”) from the store employee.  This time, he looked into it and discovered that his misdemeanor conviction from the 1990’s barred him from purchasing any firearms.  He sold the one firearm he then owned and brought suit to challenge his firearm disability.  (Alan Gura, who argued the Heller case before the Supreme Court, is one of the attorneys representing Range).  The court’s opinion from August 30, 2021 is a ruling on cross-motions for summary judgment; the court sides with the government.

The court begins its analysis by mentioning that Heller left several unanswered questions, but overall requires a “delicate” balancing test in Second Amendment cases. It then proceeds to Third Circuit precedent.  The Third Circuit, in Binderup v. Attorney General, broke from the majority of circuits on how to handle as-applied challenges to the federal felon-in-possession law, especially as it applies to state misdemeanor convictions (the statute includes those with (most) state misdemeanor convictions that carry a potential sentence of more than two years as a bar to gun possession).  Binderup created the impression, I think, that the Third Circuit is more favorable to those with nonviolent criminal convictions who seek to challenge the firearm prohibition in their individual case.  The opinion in Range, however, casts some doubt on this idea, and illustrates how complicated the Third Circuit’s approach really is.

Judge Pratter then observes that Binderup had multiple opinions, and no clear majority.  Following the Supreme Court’s 1977 decision in Marks v. United States, courts should follow the “median” position in a case where none of the opinions garner a majority of the appellate panel. For Binderup, this means following Judge Ambro’s opinion.  The court then proceeds with a complicated series of steps for analyzing a Second Amendment challenge.

First, the court applies the two-step (or two-tiered) approach from United States v. Marzzarella to determine if a the conviction was for a “serious” crime.  If the crime was indeed “serious,” then (under Marzzarella) the Second Amendment does not even apply – the individual is outside the scope of protection of the Amendment, because the individual is an “unvirtuous citizen.” On the other hand, if the conviction was for a “non-serious” misdemeanor or felony, the question is whether the law impermissibly infringes on the individual’s Second Amendment rights.  Judge Pratter notes that this inquiry involves burden shifting – if the challenger succeeds at the first step, the burden shifts to government to justify law under (some form of) heightened scrutiny. 

Marzzarella adopted a four-factor test to determine if crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony, (2) whether the criminal offense involves violence or attempted violence as an element, (3) the sentence imposed, and (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime.”  The Third Circuit’s subsequent decision in Holloway v. Attorney General added a fifth: “the potential for physical harm to others.”  The government conceded in this case that Range wins on four of the five factors – all except the “consensus of other jurisdictions.”  The parties also agreed that around 39 jurisdictions consider food stamp fraud a felony, under a variety of statutory approaches.  Range had the burden to show that there is not a consensus among jurisdictions that his crime is “serious.”

Range tried to overcome this unfavorable ledger by arguing that the court should use as comparison only those states that specifically criminalize “false statement regarding food stamps,” rather than including it under general theft or fraud statutes; this would have removed 15 of the 39 unfavorable states, leveling the comparison from his perspective.  He could offer no legal authority to support such a move, but instead argued from the standpoint of fairness, compassion for the poor, etc.  The court expressed sympathy with this idea, but explained:

But under our system of government it is within the prerogative of every state to choose between having a more complex criminal code that defines its statutes narrowly, and more general criminal statutes that are accompanied by a greater range of possible punishments.  Nothing in Binderup, or any opinion applying its multifactor test, provides that a state’s choice to classify conduct like Mr. Range’s as a felony is irrelevant merely because the drafters of the laws in any given state choose to define crimes with more general language.

In a section of the opinion that I would find useful as a teaching tool in the classroom, the court then discusses a perennially thorny issue with multi-factor tests: whether one factor can outweigh all the others (“a set of elements that all petitioners must meet”), or if the factors constitute a balancing test, such that courts should weigh how the factors line up in a given case.  On this issue, Judge Pratter clarifies that even though the original Binderup plurality described this as a “balancing test,” more recent Third Circuit decisions in Holloway and Folajtar v. Attorney General allowed the government to prevail by winning on just one of the factors, thus making a single factor dispositive.  In a sense, this is the classic “rules-versus-standards” problem with judge-made law; through the lens of that rubric, the court here concludes that the five factors are rules, not standards.

Finally, Range argued that even if one factor could cancel out all the others, that factor should be Pennsylvania’s own classification of the original crime as a felony or misdemeanor, as the court did (in the government’s favor) in Folajtar.  The court again disagrees; even though the Folajtar majority found this one factor dispositive enough to reject a Second Amendment challenge, it did not address whether this was because the factor was singularly important compared to the others, or if the plaintiff simply needs to prevail on all five factors – as this court concludes.  In the end, the court decided that Range’s previous crime puts him outside the protection of the Second Amendment, so the firearm disqualifier applies.

The treatment of the factors as elements – that is, each one being independently dispositive – is a significant step in the development of Second Amendment doctrine in the Third Circuit, if the Court of Appeals upholds it.  A second significant doctrinal development in this case is the recognition of a sixth factor (inferred from Folajtar): “And it is not merely each state’s determination of a statute’s seriousness that the Court is considering. Congress has also determined that the conduct in question was sufficiently serious to justify disarmament.  This fact operates as a powerful “sixth factor” present in every case, weighing in favor of the Government.”  The difference between Range and Folajtar is that the latter involved a felony conviction for violating a federal law, so it was possible to read the language in Folajtar about Congress designating the crime as “serious” as relating to federal criminal statutes, but not necessarily state law violations.  Range involves a prior conviction under Pennsylvania state law.  The “Congress-says-it’s-serious” language in Range refers to the felon disarmament statute itself, even as applied to state-law convictions.  If nothing else, Range crystalizes the rule in Folajtar in a way that seems to make as-applied challenges to §922(g)(1) inoperative in the Third Circuit, at least for felony convictions.

I argue in a forthcoming article (discussed on this blog here) that analyzing these cases based on whether an individual’s conviction was for a “serious” crime or a “crime of violence” is an unworkable approach requiring overly-complex cross-jurisdictional statutory comparisons, and this case seems to illustrate my point nicely.  The arguments raised by Range – and the rebuttal points by the government and Judge Pratter – are reminiscent of the arguments that arise in cases under the ACCA, §924(c), and the sentencing guidelines for classifying offenses as “crimes of violence,” with often inconsistent and counter-intuitive results.  The ambiguity in the text and difficulty in the task are among the reasons the Supreme Court has struck down the so-called residual clauses in ACCA and §924(c) in recent years.  The district court here had to apply a two-step process under Marzzarella to get to a five-factor test, one of which requires a 50-state comparison of statutes, with wide variation in how states structure their criminal codes.  Some codify crimes in standalone code sections, while many others include a range of possible offenses under general headings like “theft” and “fraud.”  States have incompatible systems for both gradation of offenses (e.g., “Class A” or “Class B” versus “First Degree” or “Second Degree”) and classification of felonies versus misdemeanors.  For this reason, I am skeptical about jurisprudential attempts to narrow, or find exceptions for, the federal prohibited person laws under §922(g).  In the end, even an arguably sympathetic petitioner like Range will often fail to obtain the desired relief, but the courts must wander through an analytical maze to reach the same conclusion that it would have reached by simply accepting and applying the federal statute at face value – and relying on Heller’s presumption that longstanding prohibited person laws are valid under the Second Amendment.




Pieces Reviewing Ayres and Vars’ Weapon of Choice

The Quinnipiac Law Review recently published a series of essays from a symposium discussion of Ian Ayres and Frederisk Vars’ recent book, Weapon of Choice: Fighting Gun Violence While Respecting Gun RightsI wasn’t able to find publicly accessible copies, but some excerpts are below (including from our own Joseph Blocher). 

  • Joseph Blocher, Two Concepts of Gun Liberty, 39 Quinnipiac L. Rev. 363 (2021)

From the Article (footnotes omitted):

Gun rights are celebrated by many as a form of liberty–“America’s First Freedom,” as the title of the NRA magazine puts it. But what kind of liberty is at stake, and for whom? Ian Ayres and Fredrick Vars’ Weapon of Choice provides a novel and important approach to those questions by proposing a system by which people can voluntarily restrict their own access to arms. The lessons it suggests are relevant to discussions of gun rights and regulation more broadly; namely, that gun rights can be understood as both positive and negative liberties (to borrow Isaiah Berlin’s famous frame from “Two Concepts of Liberty”), and that efforts to regulate guns can also be understood in those terms.

Putting liberty on both sides of the scale is important. The gun debate in the United States is usually framed as if it is a matter of constitutional liberty on one side–that of gun owners–and “policy” interests on the other. As a matter of litigation, this is not necessarily a losing frame for would-be regulators, since constitutional rights can sometimes be restricted if the government can show that the regulation in question is adequately tailored to achieving a sufficiently weighty governmental purpose. And, since no one doubts the importance of the governmental purpose in lessening the catastrophic number of fatal gun injuries (about  40,000 in 2018), the question typically becomes whether any particular law does so effectively enough. In the vast majority of litigated Second Amendment cases, the answer has been “yes.”

But the “liberty versus policy” frame nonetheless distorts constitutional litigation and public discourse, effectively stacking the deck–legally and rhetorically–against efforts to reduce gun harms.

  • Stephen G. Gilles, Weaponized Associational Choices and Second Amendment Rights, 39 Quinnipiac L. Rev. 371 (2021)

From the Article (footnotes omitted):

I commend Ian Ayres and Fredrick Vars for writing Weapon of Choice with the goals of reducing gun violence and gun deaths, while simultaneously finding common ground between gun-control advocates and defenders of gun rights. Part I of their book promises to achieve both goals: Ayres and Vars focus on gun suicides–which account for “[w]ell over half” of gun deaths in America. They have an ingenious plan to reduce gun suicides by enabling persons who are worried about their own suicidal tendencies to waive their rights to purchase–or even continue to own–a gun, using a state-sponsored registry that will feed into the federal background check system. Enabling people to protect themselves from their own suicidal impulses is a great idea, and one that gun-rights supporters should embrace.

…The subject of this essay, however, is Part II of Weapon of Choice, which I will argue cannot possibly meet its authors’ goals. In Part II, Ayres and Vars propose several laws that they argue will reduce gun violence by “Harnessing Others’ Association Preferences.” I will focus on their broadest and–from the standpoint of Second Amendment rights–most burdensome proposal, which they refer to as the “email option.” After summarizing how the email option would work, I will argue that the proposal is unconstitutional, in part for reasons that would also make it bad public policy. Finally, I will explain why proposals such as the “email option” are far more likely to further polarize the gun-control debate than to build consensus on how best to reduce gun violence.

  • Brannon P. Denning, A Skeptical Look at Associational Marketplaces and Gun Ownership, 39 Quinnipiac L. Rev. 397 (2021)

From the Article (footnotes omitted):

Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights is an important and timely addition to a polarized and tired debate about gun violence in the United States. Ian Ayres and Fred Vars offer concrete policy proposals beyond the usual jejune calls to “close the gun show loophole,” “ban assault weapons,” or implement some large-scale confiscation program. The bottom-up approach advocated by the authors holds the promise that some proposals might be adopted in some states and furnish data on which, if any, could be scaled up nationwide. It is a very important contribution to the literature on stopping gun violence and though the authors tend to favor more regulation, they write for the most part with an understanding of, and respect for, the fact that tens of millions  of Americans cherish the right to keep and bear arms guaranteed by the Second Amendment.

Specifically, the Ayres & Vars’ proposals to reduce gun suicides are an important contribution to an aspect of the gun violence problem in the U.S. that has long been overlooked in debates over gun control. Likewise, they make a valuable contribution to debates over how best to make sure that guns do not belong in the hands of people who may not legally possess them or whose mental state makes gun possession by them a hazard to public safety. The middle third of the book also proposes the creation of “associational marketplaces” that would require certification of non-possession a condition of engaging in certain types of private contracts, such as leases. I will argue here that these associational marketplaces have constitutional problems that are soft peddled by Ayres and Vars. In addition, I think that widespread implementation of association marketplaces for gun ownership and non-ownership have potentially harmful societal implications.

Part I of this essay briefly describes how Ayres and Vars envision the societal marketplaces functioning, including the limit that the authors would place on their use. Part II then sketches some potential constitutional problems; Ayres and Vars concede that constitutional values are implicated, but ultimately dismiss them as overstated. I find their dismissal of the values they say are implicated a little too breezy, and I think that they overlook other, possibly more serious, constitutional problems with their proposal. Part III then argues that whatever the merits of the constitutional case against associational marketplaces, there are implications for society as a whole that counsel against their adoption.

  • Katrina Brees, The Story Behind Donna’s Law, 39 Quinnipiac L. Rev. 359 (2021)

From the Article (footnotes omitted):

As a teenager, I was the first to diagnose my mother as bipolar. At the time, it was called Manic Depression, and I found her extreme episodes labeled as such in a psychology book I found at the local library. She would be voluntarily hospitalized a dozen or so times more over the years.

June 26, 2018 we ran out of time.

She searched on her phone for “gun stores New Orleans” and left her house for the gun shop. Her partner called the police, hoping they would be able to intercept the inevitable. She purchased a Smith and Wesson 38  and a box of pink bullets that claimed to support breast cancer. She drove to the park and shot herself. It was all very quick.

Two days after her suicide, I posted this on my Facebook page:

My mom bought a gun in New Orleans on Tuesday and drove to the Tree of Life and opened the box and shot herself. I’m telling you all because gun control is not only about homicide, it is twice+ as likely to be a suicide. People suffering from bipolar and depression have no way to protect themselves from a suicidal gun purchase in Louisiana. I wish my mom could have registered herself as being unfit to buy a gun. She would have signed it years ago to protect herself and our family. I hope one day we can give people with bipolar and depression a better chance at living, but we are a long way off. I’m sorry to be so raw, I feel raw. I can’t believe how impossible it was to get my mom help and how easy it was for her to buy a gun. RIP Mama Donna Nathan. It’s OK to share this if you like.

The post went viral. The media helped with sharing my story and supporting my efforts to create a voluntary registry to prevent suicidal gun purchases. I had recently been hired by the Republican party as a sculptor to create art for their convention. My employer saw the articles and promised to help find me a sponsor. As the former head of the Louisiana Republican Party, he was very helpful. The convention would prove to be an amazing opportunity. I was able to make the connections I needed and get bipartisan support for Donna’s Law. While it did not pass the House in Louisiana, it has since passed in Virginia and I look forward to supporting families across America as they attempt to adopt this life saving tool.