1

Scholarship Highlight: New Works on Firearms Law

As we gear up for the Supreme Court’s hearing of New York State Rifle & Pistol Association v. Bruen in November, other firearms law and Second Amendment issues continue to be litigated in lower courts and debated in the literature. Here are new pieces that take on the issue of public carry (just recently posted to SSRN) and the tort shield governing claims against the firearms industry (just recently published).

From the Article (citations, quotations, and alterations omitted):

Since its enactment, the PLCAA has largely removed the gun industry from the salutary effects of the civil justice system, effectively rendering manufacturers of the most inherently dangerous products on the market immune from lawsuits arising out of the negligent misuse of their products. . . . The law contains six express exceptions to this prohibition, one of which permits “action[s] in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” This exception, known as the sales and marketing predicate exception to the PLCAA, served as the basis for the 2019 lawsuit in Soto v. Bushmaster Firearms International. . . .

The United States is facing a gun epidemic. Nearly 40,000 people in the United States died from gun-related injuries in 2017. On August 3, 2019, Patrick Crusius entered a Walmart in El Paso, Texas and began shooting. Early the next morning, Connor Betts opened fire in an entertainment district in Dayton, Ohio. Combined, the rampages left thirty-one people dead in a span of twenty-four hours. And the cost of gun violence goes beyond the lives lost. In 1994, the medical cost of treating gunshot injuries reached $2.3 billion. By 2019, gun violence was estimated to cost the U.S. $229 billion every year. Immunity legislation, like the PLCAA, forces taxpayers and victims of gun violence to absorb this cost instead of manufacturers and dealers who place inherently dangerous weapons into the stream of commerce. The Act constituted a rejection of 160 years of products liability and flies in the face of concerns over continuing widespread gun violence. Corporations who lobbied for the Act through organizations like the NRA have adopted calculated and profit-driven strategies to expand the market of their weapons and court “high-risk users” through targeted media campaigns and promotional tactics. And while the PLCAA has remained a seemingly impenetrable barrier to lawsuits based in deeply rooted products liability doctrines, Soto may be representative of a growing fracture in the legislation’s armor. By adopting the approach taken by the majority in Soto, state courts may be able to hold gun manufacturers responsible for the harms caused by their products if it can be shown that the manufacturer’s illegal marketing strategies were causally related to the injury. In so doing, Americans may once again have the ability to decide for themselves whether the benefit of the country’s gun industry, as it now stands, is worth its ever-rising cost.

From the Abstract:

Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), purports to find that the right to bear arms is outside the historical scope of the Second Amendment, which protects that very right to bear arms. The actual text of the Second Amendment is AWOL in the Ninth Circuit’s holding that Hawaii may ban the carrying of firearms, whether openly or concealed. The court’s lengthy account of the history of prohibition on bearing arms is a faux histoire.

Young begins by tracing Hawaii’s ban on carrying a pistol to 1852, when Hawaii was a monarchy. Hawaii’s Constitution recognized no right to bear arms, and instead the law declared that only persons in government were “authorized to bear arms.” When the monarchy was overthrown and a republic created, a law was enacted allowing anyone to carry a pistol by paying a license fee. The court simply ignores that period and highlights restrictions imposed after annexation by the United States. And it disregards how the “good cause” exemption, which allowed carrying without a license, was enforced.

Next Young finds precedent for the carry ban in the decrees of medieval English kings, who prohibited subjects from “going armed.” However, the context concerned knights in armor fighting and creating turmoil, not lowly peasants carrying a bow or dagger for self-defense. At any rate, our Founders would have held in disdain the idea that they needed “the king’s license” to bear arms. The court also misrepresents various English statutes, such as the prohibition on going armed to rob, murder, and kidnap, terms that the court snips out to claim that the law simply banned the carrying of concealed weapons.

The Statute of Northampton of 1328, with its convoluted language on coming armed before the King’s Justices or going or riding armed, is held up by Young as the holy grail to justify carry bans. But the court butchers the definitive holding in Rex v. Sir John Knight (1686), reflected in treaties thereafter, that the Statute only applied if a person went armed with evil intent in a manner to terrorize the subjects. And it underrates the scope of the Declaration of Rights of 1689, protecting the right of Protestants to “have Arms for their Defence.”

Young’s “history” goes further downhill when it crosses the Atlantic. Carry bans in the American colonies were somehow seen as normal because the backwater East New Jersey had a temporary carry restriction and the other colonies required settlers to carry arms to church and other public places. The court skips over the history of the British attempts to disarm the Americans, the demands that the proposed Constitution have a bill of rights, and public discussion leading to the ratification of the Second Amendment.

Instead, the court jumps to antebellum laws that prohibited going armed offensively to the terror of the people, which were irrelevant to the peaceable carrying of arms. It muddies the waters about nineteenth-century judicial decisions, which generally upheld the right to bear arms except for an outlier Texas case from 1871. The antebellum slave codes and judicial decisions upholding them, based on the premise that slaves and even free persons of color had no right to bear arms because they were not citizens, warrants no notice in Young. And it is silent on the purpose of the Fourteenth Amendment to overturn black code provisions requiring African Americans to obtain a carry license that could be issued or denied in the discretion of the government.

The Ninth Circuit in Young paints a faux histoire of the right to bear arms. It relies on medieval decrees that would have been anathema to the Founders, deletes key passage from historical sources, leaps over crucial stages of American history such as the coming of the Revolution and of Reconstruction, and otherwise distorts the past to demonstrate that the right to bear arms is actually beyond the historical scope of the right to bear arms.




Breaking Down the Initial Amicus Briefs in Bruen

In New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court will answer: Did New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense violate the Second Amendment? New York bars open carry of handguns, and the state has a “may issue” licensing scheme to carry a concealed handgun. This means the applicant must meet certain statutory requirements, and the licensing official has discretion in the final decision of whether to issue a permit. (Alternatively, states with “shall issue” schemes offer little to no discretion, instead relying solely on statutory requirements.) In New York, discretion comes in the form of determining if the applicant showed “proper cause” for needing to carry a concealed handgun. The standard of “proper cause” is not statutorily defined but has been interpreted as a “special need” above that of the public or of applicant’s specific profession.

There are two dimensions of particular importance in the case. First, the Court’s treatment of New York’s “may issue”/“proper cause” scheme will undoubtedly impact the other six states with similar licensing requirements. Second, the Court must deal with the question of how to evaluate claims regarding Second Amendment laws. Many amici, some judges, and even a few Justices argue that courts should look only to text, history, and tradition. Under this test, a law with no historical analogue would apparently be unconstitutional. However, every federal court of appeals to come across the question has settled on a different approach: a two-part means-ends scrutiny framework. At the first step of this test, courts ask if the law burdens conduct the Second Amendment protects. If not, then the law is constitutional. If so, then courts use a heightened level of scrutiny to determine if the law sufficiently furthers an important or compelling government interest. Given this dramatic difference in methodology, the Court’s decision has the potential to disrupt a considerable amount of case law. 

Considering the stakes at issue, it is no surprise that there are copious amicus briefs filed in Bruen. Briefs in support of petitioner and in support of neither side were due July 20th, 2021. There are 49 amicus briefs docketed on the Supreme Court’s website; and there will likely be a similarly large number in support of the state filed in September. All but two of the currently posted briefs are in support of petitioners. One of these, a brief of “Second Amendment Law Professors,” was written by Center Faculty Co-Directors Joseph Blocher and Darrell Miller, along with SMU Law Professor Eric Ruben. The professors argue the Court should “hold that the courts of appeals are using the proper doctrinal framework to adjudicate Second Amendment claims.” On another note, the brief of Patrick J. Charles provides a historian’s “contextualized understanding” of the history of modern laws concerning concealed carry and dangerous weapons.

This level of amicus support is consistent with a broader trend. Over the past ten years, the Supreme Court has seen a dramatic increase in the number of amicus briefs filed. From 1946-1955, there was an average of one brief filed per case. Then, 1986-1995 saw about five briefs per case. Most recently, the 2019-2020 term yielded an average sixteen briefs per case, for a total of 911 briefs. In the same term, eight cases had at least thirty briefs; Bostock v. Clayton County, a case contemplating Title VII protections for LGBTQ+ employees, had the most filed with 94 unique briefs. In Bruen, if there are as many briefs supporting the state as there are opposing it, the case will surpass the number in Bostock. Usually cases with controversial, social issues generate large numbers of amicus briefs. Interestingly, in 2008, District of Columbia v. Heller held the record for the most amicus briefs up to that time, with 68.

Source: “Amicus Curiae at the Supreme Court: Last Term and the Decade in Review,”

The National Law Journal, 11/18/2020

The Bruen amicus briefs cover a wide array of topics. Three briefs explicitly invoke corpus linguistics evidence. Twelve briefs discuss the Second Amendment’s treatment as a “second-class” or “disfavored” right. Eleven briefs note the racial/gender/outgroup impacts of laws. Of these, 2 discuss threats against women, 9 focus on racial divides, 3 note anti-immigrant discrimination; there are also single mentions of discrimination against LGBTQ+ individuals, religious minorities, indigent people, and ethnic minorities.

The following table highlights the breakdown of amicus briefs arguing for certain positions or invoking certain arguments.

 

Briefs that used…

Briefs that did not use…

Percent that used…

(out of 49)

Text, History, Tradition

28

21

57%

Scrutiny Analysis

6

43

12%

Corpus Linguistics

3

46

6%

Discriminatory Outgroup Impact of Laws

11

38

22%

“Disfavored” right language

12

37

24%

The Center’s work also factored into the legal analysis of several amicus briefs. Four briefs cite posts on this blog. Additionally, there are 2 direct references to the Repository of Historical Gun Laws. (The Repository is a free, searchable database of gun laws. Laws are organized by subject-matter, with seventeen categories. It is also searchable by geographic area; laws are divisible by country – United States or English law – by all fifty states, or by one of twenty-two cities.) And 4 briefs cite scholarship from the Center directors.




A Historian’s Assessment of the Anti-Immigrant Narrative in NYSRPA v. Bruen

In the upcoming Supreme Court case New York State Rifle & Pistol Association v. Bruen (20-843), the petitioners and several accompanying amici are characterizing New York’s 1911 Sullivan Law as having deep anti-immigrant roots. In one section of petitioners’ brief it is alleged that “New York was at the forefront of this new wave of discrimination” with the law, “and it used discretion…to achieve its goal.”  In another section petitioners allege that the “[Sullivan Law] was passed with an avowed intent, supported by everybody from City Hall to the New York Times, to disarm newly arrived immigrants, particularly those with Italian surnames.” Similarly, in an amici curiae brief filed by Italo-American Jurists and Attorneys, it is alleged that “the historical record shows that much of the impetus for the law came from a reaction to crime many associated with first- and second-generation Italian immigrants.”

In an amicus curiae brief in support of neither party, I characterize this anti-immigrant historical narrative as “speculative at best.” The reason for my speculative assessment—although not fully outlined in the brief—is two-fold. First, there is nothing in the legislative record that even remotely suggests the Sullivan Law was enacted with anti-immigrant intent or aforethought. For any court, let alone the Supreme Court to declare a law as having what petitioners deem to be “avowed” discriminatory intent will require substantiated evidence showing as much. The legislative record is obviously the best evidence. The political and personal writings of any involved lawmakers can also prove persuasive. However, in the case of the Sullivan Law, this evidence is utterly lacking. The only evidence that petitioners and accompanying amici can point to are a handful historical newspaper opinion editorials and articles. But this provides little in the way of proving anti-immigrant legislative intent.

This brings us to the second reason why petitioners’ and accompanying amici’s anti-immigrant narrative is speculative; at the time New York adopted its discretionary armed carriage licensing law as part of the Sullivan Law, such laws were already prevalent throughout the United States. In New York alone, by 1911, 8 major municipalities had adopted discretionary armed carriage licensing laws. This included Albany, Buffalo, Brooklyn (passed standalone law but incorporated by New York City in 1898), Elmira, Lockport, New York City, Syracuse, and Troy. The historical point to be made is that for petitioners’ and accompanying amici’s anti-immigrant claims to ring historically true would require uncovering a nationwide anti-immigrant conspiracy. It would mean that most of the other discretionary armed carriage licensing laws adopted prior to the Sullivan Law, to include Massachusetts’ 1906 law, were insidiously adopted with anti-immigrant aforethought. Yet there is no substantiated evidence to support this claim. 

This begets the question: if there is nothing of historical substance that supports the anti-immigrant narrative of the Sullivan Law, how did it enter the public discourse and subsequently make its way before the Supreme Court? The answer is the anti-immigrant narrative is merely one of many anti-Sullivan Law narratives advanced by gun rights proponents dating back to the law’s enactment. The Sullivan Law was in fact the impetus and continued driving force behind the first gun rights movement. As I detail in Armed in America: The History of Gun Rights from Colonial Militias to Concealed Carry, it was not long after the Sullivan Law was enacted that the early gun rights movement assailed the law as everything from “anti-American,” to a “disgrace and shame to a liberty loving nation,” to “harmful to the interests of the community,” to “repulsive to the average thinking citizen.” Some within the gun rights community went so far to characterize anyone who supported the Sullivan Law as a “traitor to the country” and speculated that the growth of firearms regulations in general was part of a larger sinister scheme to disarm the entire United States. And when the National Rifle Association (NRA) commandeered the gun rights movement as its very own, the slippery slope to disarmament argument against the Sullivan Law was utilized frequently and remains a widely used talking point against firearms restrictions to this day.

It was not until the 1960s that gun rights proponents introduced into the public discourse the first history-based anti-Sullivan Law narrative. The history-based narrative being that the Sullivan Law was “rammed” through the New York Assembly by state senator Timothy D. Sullivan, whom the law is named after, to consolidate his political power and disarm his rivals. Additionally, to make it appear as if the law was the idea of a deranged madman, Sullivan’s having been later committed was mentioned frequently. Yet this new anti-Sullivan Law narrative completely missed the historical mark in several respects. For one, the Sullivan Law was not “rammed” through. Rather, it was properly considered after several hearings and adopted almost unanimously, with 194 of the 201 elected assemblymen and senators voting for it. Secondly, there is no historical evidence, either direct or circumstantial, to suggest that Sullivan intended on using the law to consolidate power and disarm his political enemies. The claim appears to have been created out of thin air. Third and lastly, the new anti-Sullivan Law narrative completely sidestepped the reams of historical evidence showing the law was primarily a response to an increase in firearms-related violence and homicides, particularly in New York City. (See Charles, Armed in America, pp. 173-82 and accompanying notes.)

It was not until 1975 that the anti-immigrant narrative of the Sullivan Law first appeared in a book titled The Gun in America: The Origins of a National Dilemma. Written by Lee Kennett and James LaVerne Anderson, the book suggests that the modern growth of firearms restrictions from the late nineteenth through the early twentieth century was in part due to widespread anti-immigrant sentiment. What substantiated historical evidence did Kennett and Anderson provide to back their anti-immigrant claim? Not much. Just a few New York City based newspaper opinion editorials and articles, none of which proves that the Sullivan Law was indeed enacted with anti-immigrant intent or aforethought. Nevertheless, it did not take long before gun rights proponents began recycling Kennett’s and Andersons’s anti-immigrant narrative as verifiably true—the most notable being Don B. Kates, who in his 1979 book Restricting Handguns: The Liberal Skeptic Speaks Out was rather forthright in leveling the anti-immigrant charge. In Kates mind, it was no coincidence that the Sullivan Law and other modern firearms restrictions came about during “the most xenophobic period of American history.” Yet in leveling this divisive “xenophobic” historical charge, Kates provided nothing in the way of actual historical evidence—repeat, nothing.

In the more than four decades since the publication of Kennett’ and Anderson’s Guns and America and Kates’ Restricting Handguns, many gun rights writers have recycled the anti-immigrant Sullivan Law narrative as historically true. This includes the likes of David B. Kopel, Robert J. Cottrol, Raymond T. Diamond, T. Marks Funk, and Stefan B. Tahmassebi—all of whom are cited in the petitioners’ and accompanying amici’s briefs in Bruen to advance the anti-immigrant Sullivan Law narrative. And as historical support for each one of these gun rights writers’ anti-immigrant assessment of the Sullivan Law they cite the same two principal sources—Kennett’s and Anderson’s Guns and America and Kates’ Restricting Handguns.

Yes, the entire evidentiary basis for the anti-immigrant narrative of the Sullivan Law comes from unsubstantiated allegations made in two books. This type of circular citation gymnastics has been ongoing in gun rights literature since the mid-to-late 1970s. As historian Don Higginbotham acutely observed more than two decades ago, the tactic of “borrow[ing] very heavily from each other, recycling the same body of information,” is standard practice among many gun rights proponents. Why would anyone expect the anti-immigrant narrative of the Sullivan Law to be any different?

Circular citation gymnastics issue aside, there is an even greater historical accuracy problem with the anti-immigrant Sullivan Law narrative. This problem being the evidentiary basis for the narrative’s principal historical claim, i.e. that for the first three years of the Sullivan Law, 70% of those arrested had Italian surnames. Accepting the claim on its face suggests that the Sullivan Law was enforced with anti-immigrant aforethought. The petitioners and accompanying amici in Bruen cite David B. Kopel’s 1992 book The Samurai, the Mountie, and the Cowboy as the principal source for the 70% number. However, as Kopel’s footnotes show, the 70% number originated from a book published by the Second Amendment Foundation.

And it turns out that the 70% number is rather specious. For at no point does the author of the 70% number, Brendan F.J. Furnish, provide any data or citations to back it. Indeed, Furnish writes that he arrived at the 70% number after performing a “close perusal of New York Times articles” spanning from 1911 to 1913. However, no other information is provided. How many instances of enforcement did Furnish find? We don’t know. What were the Italian surnames? We don’t know. In which section(s) of the New York Times did Furnish look? We don’t know. In other words, Furnish did nothing in the way of providing follow-on researchers the information necessary to fact check his 70% number without doing their own full analysis of the New York Times from 1911 to 1913. But even assuming that Furnish had located every New York Times example of the Sullivan Law being enforced and the Italian surname number was 70%, that data only provides us with sample of all Sullivan Law enforcement in the state.

With that said, the 70% number piqued my historical curiosity about what could be gleamed from examining the Sullivan Law arrests reported in the New York Times from 1911 to 1913. In conducting my search, I first utilized the New York Times Index. I then performed a variety of digital newspaper searches. In doing so, I did not limit myself to merely searching the term “Sullivan Law,” for at times the Sullivan Law was referred to as the “Sullivan Act.” Additionally, at times the Sullivan Law was referred to as the “Sullivan weapons law,” “Sullivan weapons act,” “Sullivan anti-pistol law,” or some variation thereof. Thus, by conducting a broader, more expansive digital newspaper search I ensured that I was provided with a larger data set than that listed in the New York Times Index.

Ultimately my search for Sullivan Law arrests reported in the New York Times from 1911 to 1913 produced 89 named defendants and 43 unnamed defendants. Out of the 89 named defendants, the New York Times reported the final outcome for only 13. Meanwhile, out of the 43 unnamed defendants, the New York Times reported that 41 received prison sentences ranging from 9 to 21 months and a monetary fine averaging $500. For these 41 unnamed defendants to receive prison sentences and fines, nothing in the way of the defendants’ gender, race, socio economic status, or background was provided.  As for what can be gleamed from the totality of the Sullivan Law arrests reported in the New York Times, here are four historical takeaways:

  • During the first week of enforcement, there was confusion as to whether the Sullivan Law’s restriction on carrying a concealable firearm without a license applied to shotguns, as can be seen in the examples of Dominic Corborez and Henry Becker, who were both carrying their shotguns in cases.
  • If one accepts the reporting of the New York Times at face value, the overwhelmingly majority of reported Sullivan Law arrests appears justified. There are, of course, exceptions. Take for example the Sullivan Law arrest of Samuel Teraina, a janitor, who discharged his pistol to quickly alert surrounding neighbors and the authorities that a building was on fire. The fire was quickly put out and the building was saved, yet Teraina was arrested as violating the Sullivan Law. Another example is Frank Grekorverk, a German traveler, who upon learning about the Sullivan Law tried to turnover his handgun to the police in good faith. However, Grekorverk was immediately arrested and held to stand trial. Then there is the example of Ricardo Petrovitch, a newly arrived Italian opera manager, who was carrying a prop “stage pistol” in his belt upon arriving to New York City by ship. Petrovich was arrested under the Sullivan Law upon undocking. While one would hope that the facts of each of these three cases resulted in either the charges being dropped or the case dismissed, the reporting of the New York Times does not provide an answer.
  • Those arrested in violation of the Sullivan Law were not a monolith—males and females, citizens and immigrants, young and old, rich and poor were all arrested. However, if one accepts the reporting of the New York Times at face value, roughly half of all arrests came by luck or happenstance, such as a person reporting to nearby police they spotted an individual carrying a firearm and police finding a firearm, a person carelessly leaving out a pistol holster in their vehicle during a police stop which led to a vehicular search locating the unlawful weapon, a spouse threatening to kill or hurt the other spouse with a handgun and the police subsequently learning the handgun was not licensed, etc.
  • The anti-immigrant Sullivan Law narrative in Bruen, as advanced by petitioners and accompanying amici’s is false. For one, the claim that 70% of those arrested under the Sullivan Law had Italian surnames is unsubstantiated. For out of the 89 named Sullivan Law defendants reported by the New York Times, only 27 or 30% had Italian surnames. Indeed, 30% is a high number. However, when one considers that roughly half of the 27 Sullivan Law arrests involved persons with a prior criminal record or a known association with an Italian gang, and that the 1910 Census shows that roughly 17% of New York City residents identified as Italian and 40% of New York City residents were foreign-born, the 30% number is not all that alarming. This is not to say that Italians living in New York City did not face discrimination or mistreatment. They most certainly did, sometimes at the hands of the New York City Police Department. Take for instance the early May 1912 deaths of New York City police officers William Heaney and Charles J. Teare. Both died at the hands of Italian gunman, who was targeting known Italian gangster John Rizzo. Heaney and Teare appear to have been caught in the gunfire. But their deaths prompted the New York City deputy police commissioner to order the “police throughout the city [to be] on the lookout for Italians carrying revolvers and other concealed weapons…” It was an order that resulted in many Italians being stopped and searched for unlawful weapons, and ultimately the May 11th Sullivan Law arrests of Anthony Ferrara, Ignasto La Cavora, Calegero Salema, Antonio Consigilio, and Samuel Vanicori. It is worth noting, however, the fact that the New York City Police Department at times expressly targeted Italians when enforcing the Sullivan Law does nothing in the way of proving that the law was enacted with anti-immigrant intent or aforethought.

There are indeed other historical observations that can be drawn from the Sullivan Law arrests reported in the New York Times from 1911 to 1913, as well as other criticisms I could levy at petitioners’ and accompanying amici’s anti-immigrant Sullivan Law narrative in Bruen. But for the sake of brevity, those criticisms are better levied elsewhere.




Scholarship Highlight: New Works on Public Carry and More

Given the recent spate of merits and amicus briefing in the Bruen case that challenges New York’s concealed carry law, some new scholarship analyzing that issue is especially timely. Below I highlight those and some other new firearms law scholarship:

From the Introduction (footnotes omitted):

The claim that the Second Amendment was enshrined to protect the peaceable carrying of weapons in public places is relatively new. It was invented in the mid-1970s, largely at the behest of the National Rifle Association (NRA) and other gun rights advocates, as part of a wider, organized campaign to advance a broad, individual rights interpretation of the Second Amendment. However, after the Supreme Court decided District of Columbia v. Heller, and historians began examining the history of weapons laws in detail, the ‘peaceable carry’ interpretation of the Second Amendment was discredited as being based on really nothing more than legal conjecture, historical hyperbole, and even a few myths.

Yet recently, many of the same writers responsible for the now discredited ‘peaceable carry’ narrative are once again trying to reassert it as true. As this article will outline, this resurgence of the ‘peaceable carry’ Second Amendment is based on a similar combination of ideologically inflected legal conjecture, historical distortion, and myth. The writers leading this resurgence are particularly tilting at windmills with the allegation that professional historians are attempting to rewrite the historical record to “negate” or “cancel” the Second Amendment right to “bear arms.” One writer has gone so far to label the research and writings of historians an “Illuminati-like conspiracy … to turn the right to bear arms into the crime of bearing arms.” Such allegations appear to be nothing more than an attempt to muddle any history that the ‘peaceable carry’ writers do not favor–history that has consistently shown itself to be reliable and is based on copious amounts of historical evidence.

This article is broken into three parts. Part I explores the story behind the organized campaign to advance a broad, individual rights interpretation of the Second Amendment. Part II examines the precipitous rise and equally dramatic collapse of the ‘peaceable carry’ Second Amendment. Lastly, Part III examines why the recent resurgence of the ‘peaceable carry’ Second Amendment is merely the latest example of gun rights advocates advancing a distorted narrative to further a political agenda.

  • Noah C. Chauvin, The Constitutional Incongruity of “May-Issue” Concealed Carry Permit Laws, 31 U. Fla. J.L. & Pub. Pol’y 227 (2021)

From the Abstract:

In 2019, at least 39,000 Americans were killed by guns. Given this epidemic of gun violence, it is no surprise when legislatures enact gun control measures; in fact, they should be applauded for doing so. However, the right to keep and bear arms is a fundamental constitutional right protected by the Second Amendment. While the precise scope of this right is unclear, it appears to include at least some right to carry guns outside of the home.

States have three categories of licensing schemes for those who wish to carry guns in public. In unrestricted or “constitutional carry” jurisdictions, citizens of the state do not need any license to carry. In “shall-issue” jurisdictions, citizens are required to have a permit, but the permitting entity has no discretion; provided that the applicant meets certain requirements, the government must issue the permit. In “may-issue” jurisdictions, the permitting entity has discretion as to whether to issue the permit, even if the applicant meets all the conditions. Most “may-issue” jurisdictions require applicants to prove that they have a good reason for wanting to carry a gun, such as a compelling need for self-defense. Even when these jurisdictions do not have this requirement, they give the permitting authority discretion as to whether to issue the license.

I argue in this Article that may-issue laws are unconstitutional. I examine four other fundamental constitutional rights: free speech, free exercise of religion, freedom from unreasonable searches and seizures, and access to abortion. While the government may constitutionally limit each of these rights, it may not do so based on the subjective decisions of government officials, and certainly not based on the otherwise-lawful exercise of that right. Therefore, I argue that if the right to carry a gun outside the home is protected by the Second Amendment, then laws that require citizens to prove a good reason for needing to exercise that right are unconstitutional.

From the Introduction (footnotes omitted):

The deadliest mass shooting in American history took place at the Route 91 Harvest music festival in Las Vegas, Nevada on October 1, 2017. A lone gunman sprayed bullets from the 32nd floor of the Mandalay Bay Resort and Casino into a crowd of 22,000 concertgoers. The gunman singlehandedly fired over 1,100 rounds of ammunition, killing fifty-eight people and injuring more than 800. The shooting lasted just ten minutes.

For much of the American public, this was the first time they learned of the existence of a particular firearm accessory–the bump stock. A bump stock is a device that can be attached to semiautomatic rifles, which shoot one bullet per trigger-pull, to increase the firing rate. The Las Vegas shooter used rifles equipped with legally-owned bump stocks, enabling him to do more damage in less time. Following the shooting, the public and elected officials called for bump stocks and similar devices, such as rapid fire trigger activators, to be banned nationwide. As lawmakers began looking into changing firearms regulations, Gun Owners of America released a statement pledging its support for the “half a million bump stock owners [who] will have the difficult decision of either destroying or surrendering their valuable property.”

In Maryland Shall Issue, Inc. v. Hogan, the United States Court of Appeals for the Fourth Circuit considered whether a statute that deprived property owners of the right to possess, manufacture, sell, purchase, transfer, transport in-state, or receive a rapid fire gun trigger activator device was a “taking” requiring just compensation under the United States Constitution’s Fifth Amendment Takings Clause. The court held that the statute was not a taking because it did not involve direct physical appropriation of personal property by the government. The court myopically decided the case, relying on a wholly literal interpretation of the statute instead of analyzing the statute’s impact on property rights under the conceptual framework frequently used by the Supreme Court. By summarily dismissing the appellants’ arguments, the majority disregarded the Supreme Court’s complex regulatory takings precedent.

The starkly different approaches employed by the majority and dissenting opinions in Maryland Shall Issue, Inc. showcase the inconsistencies in Takings Clause precedent. By performing an incomplete analysis, the majority missed an opportunity to draw attention to the need for the Supreme Court to revisit this area of law. The Supreme Court must address two questions confounding its takings jurisprudence: (1) whether real and personal property should be treated differently under the Takings Clause; and (2) whether the creation of categorical tests is an effective means of analyzing regulatory takings cases.

As to the first issue, the Court should hold that real property and personal property must be given equal consideration under the Takings Clause. As to the second issue, the Court should reconsider its use of categorical takings classifications and instead rely on a multi-factor test that can account for the myriad of elements frequently encountered in modern takings cases. If the Supreme Court clarifies its takings jurisprudence, cases like Maryland Shall Issue, Inc. could be decided by lower courts more consistently.




Cars, Homes & Emergencies: Implications from Caniglia for Gun Laws

Earlier this week, the Supreme Court issued a unanimous decision in Caniglia v. Strom. At issue in the case was whether police could enter a home and search and seize items without a warrant when conducting “community caretaking functions” (i.e., not traditional criminal investigation). The Court had held in 1973, in Cady v. Dombrowski, that police could search an impounded vehicle for an unsecured gun without a warrant. That case spawned a debate in the lower courts and among scholars about whether the so-called “community caretaking exception” to the Fourth Amendment’s warrant requirement extended beyond cars in public places and into the home.

Like Cady, Caniglia grew out of a concern over guns. The case began when Edward Caniglia’s wife called the police to perform a welfare check after he had, the night before, placed a handgun on the table and asked her to shoot him. (She left thereafter and spent the night at a hotel.) Police accompanied Caniglia’s wife to the house the next morning, met him on the porch, and called an ambulance to take him for a psychiatric evaluation. After Caniglia was gone, police entered the home and seized two handguns. Caniglia later sued the police, arguing that the entry into his home and firearm seizure violated his Fourth Amendment rights. The lower courts rejected the claim, with the First Circuit concluding that Cady created a warrant exception that extended into the home. (Caniglia also raised a Second Amendment claim in the court below, but did not maintain that claim at SCOTUS, as we’ve noted.)

The Supreme Court, in an opinion by Justice Thomas, read Cady more narrowly. The Court noted that it has previously recognized several exceptions to the warrant requirement, including “when certain exigent circumstances exist,” like the need to render emergency aid to a home occupant or “to protect an occupant from imminent injury” (p.3). But the Cady rule, the Court insisted, did not create a whole new categorical exception when officers are performing community caretaking functions. Indeed, the Court insisted that Cady was fundamentally different because it did not involve the home. “What is reasonable for vehicles is different from what is reasonable for homes” (p.4). The Court thus sent the case back to the lower court. After Caniglia, it is clear there is no such thing as an exception to the warrant requirement for home entry based on a category of police action that can be called community caretaking.

The series of separate concurring opinions are also noteworthy. Chief Justice Roberts, writing for himself and Justice Breyer, wrote a one paragraph concurrence to stress that nothing in the Court’s opinion was contrary to the established rule that “[a] warrant to enter a home is not required . . . when there is a need to assist persons who are seriously injured or threatened with such injury” (p.1). Justice Kavanaugh, writing for himself, wrote to “elaborate” on the Chief Justice’s concurrence. His opinion briefly traced the rule allowing for warrantless entry to render aid to an injured or possibly injured person. This rule and the other warrant exceptions, he noted, were drawn from “common-law analogies and a commonsense appraisal of what is ‘reasonable’” (p.1). Under his view of the exigent circumstances exception, the rule “permit[s] warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now” (p.3-4). Notably, he emphasized, this does not require imminence or immediacy. He provided several examples where he thought it obvious police could enter a home without a warrant, including a woman who calls 911, says she is contemplating suicide and has firearms in the home, and does not answer the door when police arrive. “The Fourth Amendment does not require officers to stand idly outside as the suicide takes place” (p.4).

Justice Alito also wrote separately for just himself, highlighting specific areas the Court’s decision did not reach and suggesting that not “all searches and seizures conducted for non-law-enforcement purposes must be analyzed under precisely the same Fourth Amendment rules developed in criminal cases” (p.2). He specifically noted the increasing adoption of Extreme Risk Protection Order laws (aka red flag laws) and how “[t]hese laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons” (p.3). The Court’s opinion did not address issues that may arise from those laws, he wrote.

Of course, I can’t help see this case through the guns lens. It has potential ramifications for both challenges to laws like ERPOs on Fourth Amendment grounds and for the pending Second Amendment challenge to New York’s concealed-carry licensing law. As to the Fourth Amendment, it seems to me that the justices aren’t too keen on restricting the ability of states and law enforcement to render aid when a person might harm himself or others—something that the ERPO laws expressly attempt to do, with (as Joseph and I have argued), due process protections built in. The Chief Justice and Justice Kavanaugh’s concurrences in particular seem eager to provide assurances that police can respond when necessary to potentially save a life.

As to the Second Amendment, the Court’s emphasis on the significance of the home—and what sets it apart from ordinary activity in public—might have some application in Corlett. As Lenese Herbert put it on SCOTUSblog, the Court’s decision in Caniglia is “a reminder that there is, in fact, no place like home.” Historically, states have had broader leeway to regulate guns in public than guns in the home. The Second Amendment doctrine the Court develops might work similarly to its Fourth Amendment rules. Just as Justice Thomas emphasized that Fourth Amendment reasonableness might require different rules for the home and for cars, so too the Second Amendment might mandate different analyses for gun laws regulating home possession and those regulating public carry. Indeed, Justice Thomas reiterated the Court’s prior statements that the “very core” of the Fourth Amendment guarantee is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” (p.3) even though the Fourth Amendment’s text makes no distinction between one’s home and her person, papers, or effects. A similar core vs. non-core argument has been used to distinguish between the Second Amendment’s apex protection for keeping an operable handgun in the home for self-defense and its non-core protection for carrying a loaded gun in public. Only time will tell if the eventual Corlett majority extends these principles from its Fourth Amendment jurisprudence.




Pointing Guns

Earlier this week, the Texas Law Review published Pointing Guns, an essay jointly co-authored by me, Joseph, Darrell, and our colleague Sam Buell. The essay explores the cultural phenomenon of gun displays and the legal line separating lawful displays from unlawful brandishing and related crimes. Here’s the abstract:

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as criminal prohibitions and defenses—will continue to shape both social practice and law when it comes to displays of firearms in public and towards other persons.




Scholarship Highlight – Forthcoming Gun Law Articles

Today, I’m highlighting several forthcoming articles by established scholars and veterans of firearms law scholarship. These pieces raise interesting and often under-explored aspects of the legal regulation of guns.

Abstract:

Workplace violence is surprisingly common – some estimates suggest there are more than one million incidents per year, including several hundred workplace homicides and suicides. Mass shootings and active shooter rampages also occur at places of employment. In spite of the prevalence of workplace gun violence, and partly in response to it, legislatures and some courts have begun to restrict employers’ ability to prohibit firearms at the workplace facility – especially in employee parking lots, but in some cases, within the workplace building itself. Employees have growing legislative protection and even encouragement to bring guns to work, and customers or patrons may also have enhanced rights to bring guns into businesses or offices that they visit, regardless of the wishes of employers, managers, or shift supervisors. This trend coincides with a larger trend of liberalized laws about carrying concealed or openly displayed firearms; in addition, increasing numbers of gun owners are now carrying handguns outside the home. In half the states, obtaining a concealed carry permit exempts the permittee from undergoing any subsequent federal background checks when purchasing a firearm from a dealer, and in most states, private person-to-person sales do not require background checks, meaning employers cannot rely on regulatory controls to screen unstable or discharged employees, or upset patrons, from purchasing firearms. At the same time, unarmed co-workers, supervisors, and business customers or clients often feel threatened, intimidated, or even bullied by the presence of firearms in their immediate work environment, especially in the wake of highly-publicized mass shootings at workplaces, including stores, schools, and office spaces. The presence of firearms can have a chilling effect on employee communication and interactions and can alter the dynamics of relationships within a workplace, such as declining romantic overtures or responding to teasing by an armed co-worker. This paper will explore the recent legislative and judicial developments in this area (forcing employers to permit guns on workplace grounds or within facilities), the new trend for employers to provide active shooter response training or purchase active shooter insurance policies, the policy arguments and trade-offs regarding gun-free workplaces versus employee gun rights, and the need for employers to reduce the risk of violence, and especially lethal violence, in the workplace.

Abstract:

Gun violence has long been an intractable policy problem in the United States, pitting gun rights advocates against public health experts against a backdrop of modern Second Amendment jurisprudence. The Supreme Court’s 2008 decision in Heller had the long-term effect of freezing federal firearm statutes in place, even as the number of guns in circulation continues to spiral upward, and mass shootings, gun accidents, and suicides have a detrimental impact on our communities. This Article reexamines longstanding proposals for minimally intrusive regulatory approaches, such as universal background checks and restrictions on certain military-style rifles, which have the pedigree of popular support in an otherwise divisive area. More importantly, this Article revisits the issue of tort liability for gun manufacturers and dealers, and the new wave of court decisions allowing such cases to move forward in spite of a federal statute designed to grant the firearms industry immunity from such lawsuits. An area of tort litigation that was mostly dormant for fifteen years has now become increasingly active, with far-reaching implications for gun policy, gun industry insurance policies. As courts find workaround for the immunity statute or apply the statutory exceptions more broadly, gun manufacturers and retail distributors alike may need to rethink their product lines, marketing, and relationship to the secondary market.

Abstract:

In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.

Abstract:

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2106 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Abstract:

The history of gun carry laws in Wyoming parallels that of many other Western states, impacted the presence of great changes in national and regional events. From the time that Wyoming first became a territory in 1868, the treaties with the Cheyenne, the Crow, the Sioux, and the Arapahoe peoples distributing lands in Wyoming were in force. The Wind River Reservation was created for the Shoshones. The Homestead Act was recently passed, and the Pony Express, the Oregon Trail, the Overland Trail, the Mormon Trail, and the Bozeman Road crossed the plains and mountains of the territory. The Civil War had just ended and recovery was painful. The U.S. government had granted land to the Union Pacific for the transcontinental railroad, bringing with the project an itinerant population of railroad workers, many of whom were immigrants of minority status. Raids and skirmishes between settlers, migrants, and frustrated Indian Nations were increasing, and federal military outposts were built. The Territory of Wyoming encompassed an expansive geographical area, but the population was sparse. Vast prairies surrounded homes and towns, and the arm of justice was often far away. For the few short years that a portion of Wyoming existed as part of the Dakota Territory, the seat of government in Yankton, Dakota Territory, was 500 miles from Cheyenne, with limited access to the courts.

Parts of Wyoming were lawless and dangerous, at times exceedingly so. At a time when guns were carried openly upon a person for business or for protection, carrying a concealed weapon came to be viewed with distrust. One Wyoming newspaper editor went so far as to infer intent to harm just by the act of arming oneself.

“We take the point that the very act of arming oneself as a result of a quarrel or in anticipation of trouble constitutes malice and premeditation in a strict sense; that in view of the law prohibiting the carrying of concealed weapons, any person who has a grievance against another and arms himself is deserving of no sympathy when, as a result of his misdeeds, he is brought before the bar of justice.”

In the 150 years since the creation of the territorial government, the State’s stance on gun carrying has undergone many adjustments. It shows that peaceable open firearm carriage has almost always been allowed everywhere, and always allowed somewhere, in Wyoming. Concealed carry, on the other hand, has a mixed history. It came to be held in disdain, and highly regulated, in the early part of Wyoming’s history. But it became the accepted and default mode of public carry in recent years. Wyoming today has some of the most liberal gun laws in the country. This essay surveys the development of these laws from positive, public-discourse, and comparative perspectives to the extent possible given the relative paucity of sources on the topic.

Abstract:

Constitutional litigation over the Second Amendment has followed a familiar pattern. In the decade since Heller, countless cases have turned on a foundational question: how much danger does the weapon pose? But in 2020, the courts were suddenly presented with a novel constitutional question: how much danger does obtaining the weapon pose? During the COVID-19 pandemic, state and local governments enacted complete prohibitions on the acquisition of firearms. Willing buyers were ready to comply with all extent gun-control regulations. But these governments shuttered firearm stores completely. These policies were adopted not to stop the sale of guns, but to stop the spread of the novel coronavirus. In short order, these governments deemed the Second Amendment as “non-essential.” The ability to purchase firearms was treated no differently than the ability to purchase other conveniences. Still, the practices in the overwhelming majority of the states reflected what should be a basic tenet of constitutional law: enumerated fundamental constitutional rights must be “essential” rights. And the state cannot impose an absolute and arbitrary prohibition on the exercise of the essential Second Amendment.

This article proceeds in four parts. Part I considers what the word “essential” really means. Part II undertakes a fifty-state survey of restrictions imposed on the right to keep and bear arms during the pandemic. Part III analyzes another metric to decide whether the right to keep and bear arms is essential: the people. During the COVID-19 pandemic, gun sales surged. In times of civil unrest, millions of Americans viewed the acquisition of firearms as essential. Part IV revisits two district court decisions that upheld restrictions on the right to keep and bear arms during the pandemic. These cases followed the framework Chief Justice Roberts established in South Bay Pentecostal Church v. Newsom. These courts should have followed the framework Justice Kavanaugh established Calvary Chapel v. Sisolak. If any businesses are treated as “essential,” firearm stores must presumptively be afforded that same status. The right to keep and bear arms ought to be afforded “most-favored status.” And the state must justify its decision to deprive people of their right to keep and bear arms.




New York State Rifle & Pistol v. Bruen: The Basics

On Monday, the Supreme Court granted review in an important Second Amendment case, which sets it up to issue a major decision on the topic for the first time in more than a decade. Below are some answers common questions about the case.

  1. What’s the case about?

The case–New York State Rifle & Pistol Association v. Bruen–centers on New York’s requirement that an applicant seeking an unrestricted license to carry a concealed handgun show “proper cause.” New York bars openly carrying handguns. The phrase “proper cause” is not defined in the statute, but New York courts have construed it to mean that a person must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

The licensing statute only applies to handguns, not standard shotguns or rifles.

  1. Why does it matter?

The case is significant for two primary reasons. First, the law at issue in New York is similar to that in several other large states. In general, licensing schemes can be split into two categories: (1) those that allow licensing officials some discretion to deny a license to a person who meets other statutory criteria—like passing a background check or completing the required training, and (2) those that leave the licensing official little or no discretion once the statutory criteria are met. The first type of laws are typically referred to as “may issue” (because they afford officials some discretion) and the second are “shall issue.” Within the set of “may issue” law are licensing schemes that require a person to show justifiable need or good reason to carry a gun in public. These are typically called good cause or good reason laws. New York’s falls into this subcategory, as do the laws of six other states: California, Delaware, Hawaii, Maryland, Massachusetts, and New Jersey. (Rhode Island is a mixed case, with a shall-issue scheme but also a good-cause requirement; Connecticut and the District of Columbia, on the other hand, have may-issue laws but with no accompanying good-cause requirement.) So the Supreme Court’s ruling on the constitutionality of these types of laws could have profound effects on the more than 80 million Americans who live in jurisdictions that have good-cause laws. Although the empirical evidence is contested, one of the most recent sophisticated analyses concludes that shall-issue laws–the laws that dispense with any showing of good cause–“are associated with 13-15 percent higher aggregate violent crime rates 10 years after adoption.”

Second, the case is significant not just for whether the Court will uphold these types of laws, but also for how the Court analyzes them. This question—about how courts should go about deciding whether a law complies with the Second Amendment—has bedeviled lower courts since Heller left the question entirely open. Some judges and justices, including Justice Kavanaugh, believe that courts should look only to text, history, and tradition and analogize from there to assess a modern law’s constitutionality. On this view, new or novel laws that have no historical analogue violate the Second Amendment. But the more traditional method—and the one adopted by every federal court of appeals to consider the question—involves the customary means-end scrutiny that has become a fixture of much constitutional-rights adjudication. In that framework, courts assess whether a law burdens conduct that the Constitution protects, and then, if so, apply a form of heightened scrutiny to determine whether the law adequately serves the government’s important or compelling interests (usually by recourse to materials such as empirical studies and the like).

  1. The Supreme Court is going to strike down the law, right?

That seems to be the assumption of commentators who see the decision to take this case as a victory for the conservative justices who have been looking to expand gun rights since shortly after Heller was decided. But it is not entirely clear that that will be the outcome. For one thing, the justices can often issue surprising rulings, like last Term’s majority decision by Justice Gorsuch in Bostock v. Clayton County. For another, the history of good-cause licensing laws for concealed carry is rich and widespread. New York’s law has continued in substantially the same form since 1913. That 108-year history dwarfs the lifespan of several other laws that Justice Scalia in Heller called “longstanding” exceptions to the Second Amendment’s scope. Historians who study the history of gun regulations note that good-cause or may-issue regimes more broadly trace their history back even before New York’s adoption of such a law at the turn of the century. Dubbed the “Massachusetts model” after its progenitor, these laws spread after the Civil War and were commonplace in the early 20th century. Because history will play an important role in the decision no matter what methodology the Court ultimately uses, this background will likely be debated among the justices, the parties, and the scholars filing amicus briefs in the case. (It is also worth pointing out that the Court limited the question presented to “[w]hether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” It therefore does not appear inclined to address the open carry issue and will instead need to confront the statement in Heller that appears to have suggested that states could constitutionally ban concealed carry altogether.)

  1. When will the Court rule?

The Court has not set the case for oral argument yet, but that will likely happen sometime this fall or early next spring. After oral argument, the justices will work on an opinion in the case. That could come out soon after argument is decided, but the Court has typically waited until the end of the Term in June to issue major rulings. If that holds true here, the decision could be out toward the end of June 2022, though an earlier ruling remains a distinct possibility.

  1. Will the Center be doing programming around the case?

Yes! Watch this space (and visit our website – https://firearmslaw.duke.edu/) for more information as we develop programming and educational materials for the case. And, if you’re interested in the history, check out the Center’s Repository of Historical Gun Laws, containing more than 1,600 gun laws, from medieval England to the United States in 1934.

 

[Ed. note: this post was updated to reflect the name change for the respondent from Corlett to Bruen.]




Scholarship Highlight: New Student Notes on Guns

A few new student notes about firearms law have been published recently or will be soon. Once again, it’s great to see the field growing!

Danny Li, The First Amendment Weaponized: When Guns Become Public Discourse, William & Mary Bill of Rights. J. (forthcoming)

Here’s the Abstract:

This Article discusses First Amendment challenges asserted against laws regulating the open carry of firearms—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms—using armed protests as a test case. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and social norms. This Article speaks to judicial and non-judicial interlocutors, mapping a doctrinal path that judges should take to reject these challenges while providing a conceptual language for bystanders to reassert and reclaim their rights to public safety and participation from open carriers trying to weaponize the First Amendment.

To judicial interlocutors, the Article argues that the practice of open carry is too divorced from the value of democratic self-governance to constitute public discourse deserving of First Amendment coverage. It also suggests that, to overcome radically divergent social interpretations of arms bearing, courts should engage in normative analysis that takes account of the constitutional values at stake in extending First Amendment coverage to public carry. Courts should deny First Amendment coverage to gun carry both because bearing arms in public does not facilitate the formation of public opinion and because doing so preserves the social and legal norms that exclude guns from the public sphere. These norms—encoded in commonplace gun control laws—serve important constitutional values and interests central to the First Amendment.

The Article suggests that these First Amendment challenges illustrate the extent to which pro-gun rights movements transcend the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs about the right to bear arms trickle down into popular beliefs about other, adjacent constitutional rights like the First Amendment right to freedom of speech. Once we consider these First Amendment challenges to gun control measures and look beyond their lack of judicial success, we can begin to see how popular beliefs about the right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech.

To non-judicial interlocutors, the Article concludes with a call for advocates of gun control to flip the script on these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political participation more broadly.

Esther Ness, Moving Beyond Thoughts and Prayers: A New and Improved Federal Assault Weapons Ban, 44 Fordham Int’l L.J. 1087, 1087–88 (2021)

Here’s the Abstract:

The United States is infamous for its high levels of gun violence and a significant number of mass shootings. Each time the United States experiences a new mass shooting, public debates arise on changing US gun laws. Australia’s strict gun laws that were enacted in response to a 1996 mass shooting are often used as an example of what the United States could do. Recently, New Zealand has been added to the discussion because it implemented strict gun laws within a week of mass shootings at two mosques in 2019. Critics opposing similar large-scale changes to gun laws in the United States argue that the United States is too different from these other countries to create successful reforms because of the Second Amendment and a strong gun culture. Yet, the federal government was not always reluctant to reform gun laws in response to mass shootings. The United States tried implementing large-scale change when it passed the Federal Assault Weapons Ban in 1994, but since its expiration in 2004, attempts to enact similar measures have failed. This Note proposes a new federal assault weapons ban that incorporates lessons from Australia, New Zealand, and past attempts for reform in the United States. This Note analyzes how the different approaches to gun control in Australia and New Zealand will likely fare in the United States by discussing each country’s gun culture and history with guns, how these factors shape the various legal challenges to gun control in the United States, and considerations that must be accounted for when constructing a new ban. A new law formulated with these challenges in mind can achieve long-lasting success and make the United States safer.




Litigation Highlight: Young Adults Carrying Firearms

In Lara v. Evanchick, Judge William Stickman IV, a recent Trump appointee on the federal district court for the Western District of Pennsylvania, upheld last week the state’s licensing law and open carry restrictions as applied to 18-20 year-olds.  Under Pennsylvania law, only those over 21 are eligible to obtain the necessary license to carry a concealed firearm. Those lawfully allowed to possess firearms (including those 18-20 year old) are typically able to openly carry their guns instead. But Pennsylvania law declares that open carry on public streets and property is forbidden during a state of emergency, except for license holders, those (numerous groups) statutorily exempt from licensure, or those “[a]ctively engaged in a defense of that person’s life or property from peril or threat.” Pennsylvania (I learned by reading this opinion) has been under an unceasing declaration of emergency since January 10, 2018–initiated because of the opioid epidemic, sustained by the COVID-19 pandemic, and with both declarations renewed several times.

A group of under-21 year old adults and gun-advocacy groups sued, claiming that this collective set of regulations violated their Second Amendment rights. The court upheld the restrictions under step one of the two-part framework for Second Amendment challenges. At that step, said the court, its job was to determine “whether a gun restriction falls within the class of ‘longstanding prohibitions’ and ‘presumptively lawful’ regulations that the Supreme Court recognized as falling outside the scope of the liberty protected by the Second Amendment.” Noting that the plaintiffs did not challenge any of the statutory restrictions in isolation, but rather their operation in tandem, the court found the laws imposed a much smaller burden than the plaintiffs suggested. The question it confronted was “whether age-related restrictions on carrying firearms–which, nevertheless, permit carrying for a broad range of purposes including the defense of ‘life or property from peril or threat’ and a range of other activities-are the kind of ‘presumptively lawful regulatory measures’ recognized by Heller that fall outside the scope of the Second Amendment.” It held that they did, relying in part on precedent from other circuits, such as the Fifth Circuit’s decisions in ATF v. NRA and NRA v. McCraw. Summing up, the court noted:

The question is not whether the challenged laws themselves date to the founding, but rather, only whether they are the sort that have long been accepted as being consistent with the right to keep and bear arms. As the cases above illustrate, there is no question that age-based restrictions on the ownership, use and, especially, carrying of firearms have a long history in this Country. A strong consensus exists among federal courts that such restrictions fall outside the scope of the rights protected by the Second Amendment. The Court will adhere to that consensus and reach the same result.