Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms. Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.
Month: July 2019
We’re happy to announce another mini-symposium on the blog. This time, we have pieces from the contributors to the book Guns in Law, a collection of articles published this year by the University of Massachusetts Press and edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The contributors will summarize the main themes of their essays in the book, and we’ll be sharing these posts this week and next. I’ll update this introduction with links once the posts are all published. [Updated with links]
The book explores the changing meaning of guns and the methods to address gun violence. As the editors note, “Like other rights, gun rights are embedded in a continuing struggle over the boundaries of permissible regulation and permissible uses of guns.” This struggle continues unabated, notwithstanding the Supreme Court’s announcement in 2008 that the Constitution protects the right of law-abiding citizens to keep and carry firearms for self-defense. With contributions from historians, legal scholars, and sociologists, the volume exposes the rift in contemporary American society over the appropriate role of guns in public (and private) life.
For our mini-symposium, we have pieces from many of the contributors, including:
- Saul Cornell, The Changing Meaning of the Right to Keep and Bear Arms: 1688-1788. [Link here]
- Darrell Miller, The Expressive Second Amendment. [Link here]
- Katherine Shaw, Guns, Interpretation, and Executive Branch Constitutionalism. [Link here]
- Carl T. Bogus, The Hard, Simple Truth About Gun Control. [Link here]
- Laura Beth Nielsen, Good Moms with Guns. [Link here]
The book is an excellent look at an increasingly relevant aspect of firearms law.
Arguments about the right to keep and bear arms and the right to reproductive autonomy share a number of similarities. And, shortly after Heller, Judge J. Harvie Wilkinson underscored similarities in the how Court’s decisions in Roe and Heller removed controversial political issues from the realm of democratic choice, in what Judge Wilkinson thought improper and unjustified ways. The similarities in both rights debates have always stood out to me.
The Minnesota Journal of International Law recently published a comparative paper from Zachary Hofeld, Studying Abroad: Foreign Legislative Responses to Mass Shootings and Their Viability in the United States.
From the Introduction (footnotes omitted):
As difficult as they are to relive, the horrors of Newtown, Orlando, Las Vegas, and Parkland conceal a horrifying truth: mass shootings–incidents in which four or more individuals are shot and killed (not including the shooter)–are on the rise in the United States. They are occurring more frequentl and have become more deadly. Yet following each unspeakable tragedy, as cries for reform grow increasingly shrill, gun sales rise and legislatures stonewall. Meanwhile, in other developed countries, news-grabbing public mass shootings have powered reform– and with positive results. . . . .
America’s struggle with gun violence is no secret. Some scholars argue that Congress should adopt laws and policies that have successfully limited mass shootings elsewhere. Regrettably missing from this line of research, however, is rigorous evaluation of these measures’ viability–both empirically and legally–in the United States.
This Note seeks to fill that gap by examining developed countries’ legal response to widely-publicized mass shootings and evaluating the viability of those responses, practically and legally, in the United States. Part I supplies the background for this analysis, accomplishing three tasks. First, it provides a general overview of civilian gun laws globally, categorizing different approaches to gun regulation. Second, it tells the story of Australia’s, Germany’s, and Great Britain’s response to gun massacres, highlighting the impetus for reform, the legal response, and, to the extent possible, the effectiveness of the response. Third, returning home, the section provides an overview of U.S. gun law, including both Second Amendment jurisprudence and the federal-state, two-tiered gun regulation system. Part II considers whether the legislative solutions adopted in Australia, Great Britain, and Germany could work in the United States, analyzing, first, whether they address actual shortcomings in U.S. gun law and, second, whether they would comport with the Second Amendment. The Note concludes that despite calls to adopted legal approaches successful abroad, most of these solutions likely are nonviable in the United States because they either do not meaningfully address shortcomings in U.S. gun law or are unlikely to pass constitutional muster. Often, measures that would likely be effective are the ones that would likely fail Second Amendment scrutiny, while measures that would likely pass constitutional muster are the ones that likely would not effectively address the issue, thereby putting the drive to solve this problem on a collision course with the Second Amendment.
The 1828 edition of the American Dictionary of the English Language (which Justice Scalia cited in District of Columbia v. Heller when he defined “arms,” “keep,” “carry,” and “militia”) defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder. The larger species of guns are called cannon; and the small species are called muskets, carbines, fowling pieces, &c. But one species of fire-arms, the pistol, is never called a gun.”
The Center’s Twitter account—@DukeFirearmsLaw—has been a way for us to get out information about the Center, interesting scholarship and cases, and news about this blog. And we’ve recently started amplifying laws from the Repository of Historical Gun Laws. Through our new hashtag #HistoricalGunLawADay series, we’ve been highlighting one new historical law every single day, showing the myriad ways that firearms have been regulated throughout Anglo-American history.
Last Friday, the D.C. Circuit decided a big Second Amendment case, in which a defendant challenged his conviction for violating the federal law banning firearms on “Capitol Grounds.” In United States v. Class, the panel upheld the regulation against Second Amendment and Due Process challenges. The decision adds important context to the “sensitive places” doctrine that Heller first established, and which the Tenth Circuit previously applied in Bonidy v. United States. But the Class decision also does much more.
In my last blog series, I discussed laws currently in the Repository of Historical Gun Laws that relate to the category “Felons, Foreigners and Others Deemed Dangerous By the State.”
I have begun wading into a new category on the Repository over the past few weeks: “Possession By, Use of, and Sales to Minors.” Recently, I organized these laws into three groups: (1) laws that address all firearms, (2) laws that address concealable weapons or weapons worn concealed, and (3) laws that address only pistols and revolvers. I translated these groups onto a map, and what emerged was a hard line across the country, dividing the map into the North and the South.
In The Gunning of America, Pamela Haag challenged the idea that “guns are part of the American identity,” and argued that in the United States, “the gun culture was forged in the image of commerce. . . it was etched strongly by the character, ambition, and will of gun capitalists rather than by diplomats, politicians, generals, and statesmen.”
In Heller II, the D.C. Circuit claimed that long gun registration requirements are novel, not historic. Heller III reiterated this line, stating that the registration requirement for long guns lacks the “historical pedigree” of the registration requirement for handguns. But is this entirely right? Historical American firearm registration laws suggest that long gun registration is far from novel.