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SCOTUS Gun Watch – Week of 7/31/23

Posted by on July 31, 2023

There’s no update yet on the oral argument date in Rahimi, although I suspect that information may be coming within the next few weeks. On July 27, the government made an emergency application to the Court in Garland v. Vanderstok.  Judge Reed O’Connor of the Northern District of Texas issued an order in the case on […]

Founding Fantasies vs. Historical Realities in the Second Amendment Debate

Posted by on July 27, 2023

[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.] The modern debate over the Second Amendment is premised on a perfect storm of historical error. It would be tempting to conclude that historical reality is irrelevant to modern Second Amendment jurisprudence given the trio […]

In Search of Repeating Firearms in Eighteenth-Century America

Posted by on July 26, 2023

[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.] Over the past ten years, opponents of regulating assault rifles have argued that repeating firearms — some capable of firing 10 shots or more — were well-known and possibly common in eighteenth-century America. Using […]

Weapons and the Peace

Posted by on July 25, 2023

[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.] When reconstructing the legal order of the early republic, the inclination is to start where we are now and then move backward along a straight line.  Because statutes and appellate decisions at the […]

If We’re Going to Rely on History to Interpret the Constitution, We Need Historians

Posted by on July 24, 2023

The Supreme Court is turning to history more than ever in deciding cases, and nowhere is this more apparent than with the Second Amendment.  In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, a six-justice majority of the Supreme Court ushered in a new era of history-and-tradition-focused jurisprudence when it comes […]

Litigation Highlight: Split Sixth Circuit Panel Allows Retaliation Claim based on Zoom Rifle Display to Proceed

Posted by on July 21, 2023

The Sixth Circuit recently cleared the way for a district court case that will address the complicated interplay of gun displays, online speech, and qualified immunity. On January 20, 2021, the Grand Traverse County (Michigan) Board of Commissioners held a public meeting over Zoom where the Commissioners, including Ron Clous, were visible on video. During […]

Thoughts on Judge Carlton Reeves’ Critique of Text, History, and Tradition

Posted by on July 19, 2023

On June 28, District Judge Carlton Reeves issued a decision in United States v. Bullock granting a motion to dismiss by a criminal defendant charged with possessing a firearm as a convicted felon.  Judge Reeves found that the government had failed to offer sufficient historical support for the federal ban on felon gun possession (as […]

SCOTUS Gun Watch – Week of 7/17

Posted by on July 17, 2023

There are just a few updates on the Supreme Court front this week.  It is likely the Supreme Court will not announce the oral argument date in Rahimi for another few weeks.  The Court released its oral argument schedule for early-mid October last week.  The other possible argument dates this year are October 30-November 1, November […]

Scholarship Highlight: Qualified Immunity, Age Restrictions, and New Medical Research

Posted by on July 14, 2023

In a new essay forthcoming in the Notre Dame Law Review Reflection, Guha Krishnamurthi and Peter Salib argue that, after Bruen, “states, or at least certain agents of them, retain significant authority to disarm individuals they deem dangerous” because the doctrine of qualified immunity likely forecloses monetary damages and renders legal challenges largely ineffective outside […]

Litigation Highlight: Federal Judge Rejects Challenge to New York’s Church Gun Ban

Posted by on July 12, 2023

On June 28, Judge Vernon Broderick of the Southern District of New York issued a decision in Goldstein v. Hochul denying a motion for preliminary injunction of New York’s post-Bruen law designating places of worship as sensitive locations where guns are prohibited.  The plaintiffs in the case wish to carry concealed firearms—for which they have […]

SCOTUS Gun Watch – Week of 7/10/23

Posted by on July 10, 2023

With the end of the Supreme Court term, the major news remains the Court’s decision to take a major Second Amendment case (Rahimi) just one year after deciding Bruen.  That is a marked departure from the Court’s past practice, as the justices generally avoided Second Amendment cases between 2010–when the Court decided McDonald–and 2019–when the Court […]

One Year of Bruen’s Reign: An Updated Empirical Analysis

Posted by on July 7, 2023

The Bruen decision brought about a sea change for Second Amendment law, and the Supreme Court’s decision to hear the Rahimi case next year brings questions about its methodology to the forefront. Many scholars are writing about the Bruen decision and its effects. My own contribution, The Dead Hand of a Silent Past: Bruen, Gun […]

An Update on Legal Challenges to New York’s Red Flag Law

Posted by on July 5, 2023

In an earlier post, I examined a number of recent decisions suggesting that the Second Amendment only permits individuals to be disarmed based on criminal—rather than civil—process.  Of course, that view has profound consequences for extreme risk protection order laws (also known as ERPO, or “red flag,” laws) that establish civil proceedings in which a […]

SCOTUS Gun Watch – End of Term Summary 6/30/23

Posted by on June 30, 2023

One year and one week after Bruen was decided, the Supreme Court granted certiorari today in its first post-Bruen Second Amendment case: United States v. Rahimi.  The grant came on the final day of the 2022-2023 Term, a day on which the Court also released major decisions in legal challenges to the Biden administration’s student loan forgiveness […]

A Response to Noah Shusterman

Posted by on June 28, 2023

First, I wish to thank Noah Shusterman for reading Madison’s Militia: The Hidden History of the Second Amendment and writing a thoughtful critique. I am most appreciative. I also think it’s worth stating at the outset that, as I know from reading his own book about the Second Amendment, Professor Noah Shusterman and I agree […]

SCOTUS Gun Watch – Week of 6/26/23

Posted by on June 26, 2023

The Court issued an orders list this morning but did not decide whether to grant the petition in Rahimi, which it considered at last Thursday’s conference.  It’s not entirely clear when the Court will decide on the Rahimi petition.  The Court typically holds a “clean-up” conference immediately before its summer recess.  An orders list from that conference […]

Slavery, Militias, and Methodologies: Thoughts on Carl Bogus’s Madison’s Militia

Posted by on June 23, 2023

Carl Bogus’s 1998 “The Hidden History of the Second Amendment” was one of the first articles to bring slavery into the heart of Second Amendment scholarship. Bogus argued there that a need “to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia […]

Litigation Highlight: En Banc Third Circuit Holds Felon Prohibitor Unconstitutional in Certain Applications

Posted by on June 21, 2023

In a June 6 decision in Range v. Attorney General, a majority of judges of the en banc Third Circuit held 922(g)(1)—the federal statute banning possession of firearms by convicted felons—unconstitutional under the Second Amendment as applied to an individual convicted of making a fraudulent statement in an application to obtain food stamps.[1]  Last November, […]

SCOTUS Gun Watch – Week of 6/19/23

Posted by on June 19, 2023

As summarized in last week’s update, the major upcoming developments on the Second Amendment front are the cert decisions in Rahimi and Seekins.  These will likely come on Monday, June 26, following the Court’s final conference of the term this Thursday, June 22. This week, I’m adding one new case to the tracker: Kyung Chang Industry […]

2023 Firearms Law Works-in-Progress Workshop in Fort Worth, Texas

Posted by on June 16, 2023

On June 7th and 8th, the Duke Center for Firearms Law was proud to co-host the fifth annual Firearms Law Works-in-Progress Workshop in collaboration with the University of Wyoming College of Law’s Firearms Research Center (FRC).  The 2023 event was planned by the FRC and took place on the campus of Texas A&M University School […]

SCOTUS Update: Rahimi Amicus Brief Summary

Posted by and on June 14, 2023

Seven amicus briefs were filed in support of the federal government’s petition for certiorari in United States v. Rahimi, which presents the question of whether 922(g)(8)—the federal ban on those subject to certain domestic-violence restraining orders possessing firearms—is constitutional under the Second Amendment. We previously covered the Fifth Circuit’s decision in Rahimi here and here.  […]

SCOTUS Gun Watch – Week of 6/12/23

Posted by on June 12, 2023

As we approach the end of the 2022-2023 Supreme Court Term, public attention is primarily focused on the decisions in cases such as Students for Fair Admissions (challenges to the consideration of race in college admissions under the Civil Rights Act and the Equal Protection Clause), 303 Creative (a case implicating religious freedom under the First Amendment and […]

Student Note Scholarship Highlight: The Modern Relevance of the Militia, and a Proposal to Close the “Boyfriend Loophole”

Posted by on June 7, 2023

This post is the second in our mini-series highlighting recent law student notes on firearms law topics (see the initial post here).   William Reach of William & Mary Law School has written a note for the William & Mary Bill of Rights Journal evaluating the continued relevance of Miller, Presser, and a militia-related right to […]

SCOTUS Gun Watch – Week of 6/5/23

Posted by on June 5, 2023

In Rahimi, the respondent filed his brief in opposition to the government’s cert petition on May 30.  The respondent’s brief leans heavily on the fact that Bruen is less than one year old—Rahimi argues that “[a] successful constitutional challenge to a seldom prosecuted gun crime is not an emergency” and emphasizes the importance of “percolation—the independent evaluation […]

Litigation Highlight: Virginia Judge Strikes Down Provisions of Federal Law that Prohibit Federally Licensed Dealers from Selling Handguns to Those Under Age 21

Posted by on June 2, 2023

On May 10, Judge Robert Payne of the Eastern District of Virginia issued a decision in Fraser v. ATF invalidating the statutory framework that prohibits federally licensed firearm dealers (or FFLs) from selling handguns to individuals under the age of 21.  Federal law makes it unlawful for an FFL to sell or deliver a handgun, […]