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The Textualist Consequentialist? Second Amendment Implications of the Title VII Arguments

Posted by on October 29, 2019

There was a curious exchange in the most recent cases testing the boundaries of Title VII’s proscription against sex discrimination in employment. In R.G. & G.R. Harris Funeral Homes v. EEOC, an employee who alleges she was fired for identifying as a transgender woman claims that that adverse action violates the Civil Rights Act of […]

SCOTUS Gun Watch, Episode 2

Posted by on October 28, 2019

Although the Supreme Court issued no new orders this week, there’s been some movement in the cases pending before the Court. Below isthe updated graph with the now-current status of the high court’s gun docket.

Litigation Highlight: No Compensation for Bump Stock Owners

Posted by on October 25, 2019

In response to the horrific Las Vegas massacre, which left 58 dead and many more injured, the Trump Administration issued a Final Rule in December 2018 classifying bump stocks–the device the shooter used to inflict maximal carnage–as “machine guns” and thus banned under federal law. A group of individuals and entities who owned previously legal […]

Scholarship Highlight: “Libertarian Gun Control”

Posted by on October 23, 2019

Most legal scholarship and public debate about gun rights and regulation focuses on whether and how gun laws can prevent homicide—understandably so, given the astounding number of gun homicides in the United States every year. But as those closer to the debate are well aware, the majority of gun deaths are by suicide. And far […]

New Blog Feature: SCOTUS Gun Watch, Episode 1

Posted by on October 21, 2019

We’re excited to announce a new blog feature that will be a recurring Monday fixture of the blog throughout the Supreme Court’s Term. Each week, we will provide an up-to-date run down of where things stand with the Court’s firearms law and Second Amendment docket. To that end, each Monday will feature an updated chart […]

Litigation Highlight: New Cert Petition in Culp v. Raoul

Posted by on October 17, 2019

Last week, several plaintiffs filed a petition for certiorari asking the Supreme Court to review a Seventh Circuit decision upholding Illinois’s refusal to allow most non-residents to apply for a concealed-carry license. Here’s from the Question Presented: This Court has held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in […]

The Second Amendment of Things (and Grievances)

Posted by on October 15, 2019

[This post is part of a symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019), hosted on the Balkinization blog and is cross-posted there.] The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, […]

New Case: Powell v. State of Illinois

Posted by on October 14, 2019

A federal district court decision from September 30 raises some novel legal issues regarding firearm policy (the case is captioned Powell v. State of Illinois but is still at the pre-trial stage). On September 30, 2019, U.S. District Judge Joan Gotschall issued a breathtaking 34-page opinion denying in part the defendants’ motion to dismiss; it […]

This Week’s SCOTUS Action on Pending Second Amendment Petitions

Posted by on October 11, 2019

As I highlighted at the beginning of the week, heading into the new Term, the Supreme Court had (by my count) 14 outstanding petitions for certiorari raising Second Amendment or firearms-law related questions. Many of these cases had been considered at conferences last Term and, we suspect, are being held pending the outcome in NYSRPA. Coming out […]

One Gun Policy Idea We Can Agree On: Magazine Regulation

Posted by on October 10, 2019

Gun policy change in America seems to have come to a fork in the road: on the one hand, the forces favoring stronger gun laws have become more numerous, more vocal, and arguably more successful. On the other hand, the infusion of new, very conservative judicial appointments coming from the Trump administration who seem to […]

Scholarship Highlight: Curry on the Shifting Core of the Second Amendment

Posted by on October 8, 2019

Ryan Curry has published a new paper in the latest issue of the Tulsa Law Review, “An Evolving Right: The Shifting Core of the Second Amendment and Its Effect on Public-Carry.” He catalogues the various ways courts have characterized the “core” of the Second Amendment right and argues that the Supreme Court needs to step […]

Outstanding Second Amendment and Firearms Law Cert Petitions

Posted by on October 4, 2019

As the Supreme Court starts its new Term, with one Second Amendment case docketed (for now), it seems like a good time to review the outstanding petitions awaiting action at the Court. These petitions raise a variety of Second Amendment and firearms-related issues, including important questions of statutory interpretation and the scope of agency discretion. […]

Scholarship Highlight: Lund on Second Amendment Methodology

Posted by on October 4, 2019

Nelson Lund has posted a new paper to SSRN, History and Tradition in Second Amendment Jurisprudence, forthcoming in the University of Florida Journal of Law & Public Policy. Lund’s paper is fascinating and provocative. He argues that the approach advocated by then-Judge Kavanaugh—that focuses on text, history, and tradition in lieu of traditional methods of […]

Did the Supreme Court Dictate Lower Courts’ Second Amendment Interpretive Theory?

Posted by on October 3, 2019

In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was […]

Retrospective on Fall Symposium: Gun Rights and Regulation Outside the Home

Posted by on September 30, 2019

Last Friday, the Center hosted its fall symposium on Gun Rights and Regulation Outside the Home. The discussions generated through the panel presentations and Q&A portion of the event were engaging and thought-provoking. We intentionally convened scholars from a broad variety of disciplines and viewpoints. Judging by the presentations, there’s no doubt that the spring issue […]

Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

Posted by on September 27, 2019

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered […]

Two New Second Amendment Cert Petitions

Posted by on September 26, 2019

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term […]

The Untold, Somewhat Embarrassing Story Behind the NRA’s Laudatory Messages from President’s Roosevelt, Truman, and Eisenhower

Posted by on September 23, 2019

To say the history of gun rights is full of hyperboles, misnomers, and myths would be an understatement.  Time and time again, when historians examine the history of gun rights, it turns out that what is long claimed to be settled history is more nominal than real.  There is an abundance of examples of this, […]

Duke Panel Discussion on Extreme Risk Laws

Posted by on September 20, 2019

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger […]

Litigation Highlight: Duncan v. Becerra

Posted by on September 18, 2019

In March, a federal district court in California became the first federal court in the land to strike down a ban on large-capacity magazines. In a striking opinion stretching for 86 pages, Judge Roger Benitez touted the timeless principles of “[i]ndividual liberty and freedom” when he held that California could not constitutionally prohibit the transfer […]

Heller and the Vagaries of History

Posted by on September 16, 2019

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the […]

SCOTUS Watch: Daniel v. Armslist, LLC

Posted by on September 13, 2019

In 2012, Zina Daniel Haughton obtained a restraining order against her husband after he threatened to kill her. This restraining order prohibited the husband from possessing a firearm. Nonetheless, a few days later he posted a want ad on armslist.com seeking to buy a gun. He found a willing seller, arranged a meeting in a […]

Does the Second Amendment Have a “Private Infrastructure”?

Posted by on September 11, 2019

The traditional model of constitutional rights puts the government on one side and individuals on the other; rights restrain the power of the former over the latter. But that model is a little bit over-simplified in a world of pluralistic rights disputes where constitutional interests arise on many sides simultaneously. Once one goes beyond the […]

University of Utah, S.J. Quinney College of Law Jefferson B. Fordham Debate

Posted by on September 10, 2019

This past Thursday, I was delighted to participate in the 36th Annual Jefferson B. Fordham Debate at the University of Utah, S.J. Quinney College of Law in Salt Lake City.

Fourth Circuit Says Victims Can Sue Feds for Background Check Failures

Posted by on September 9, 2019

Earlier this year, I wrote about the so-called “Charleston loophole” that permits federally licensed firearms dealers to proceed with sale of a firearm if the background check hasn’t been resolved within three days. That “loophole” gained prominence after the massacre at Mother Emmanuel Church in Charleston, SC in 2015. The shooter’s purchase of the firearm […]

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