Unexpected Choices in Teaching Firearms Law

I’ve been thinking and writing about the Second Amendment for a decade, but this past year was the first time I’ve ever actually taught a course on firearms law—a seminar called “Second Amendment: History, Theory, and Practice.”

The first three weeks covered some basic history and empirics, and an overview of the opinions in District of Columbia v. Heller. After laying that groundwork, most of the rest of the semester was devoted to particular subject matter questions: the constitutionality of who, what, where, and how restrictions, for example, got at least a week each. One week we had guest speakers (George Mocsary and David Kopel, actually, both of whom are also participating in this mini-symposium!), and a few weeks were devoted to broad questions like the relevance of empirics in Second Amendment litigation, the best “theory” of the Amendment, and so on.  I evaluated students based on response papers (6 five-page papers throughout the semester) and in-class discussion, which was uniformly engaging and challenging.

I’d be happy to share my syllabus or materials, or to discuss in more detail how I went about teaching the class. But for purposes of this post I thought it might be best to highlight a few of the design choices that emerged, and which anyone designing such a classes might want to consider.

One obvious choice is how much time to spend on the militia vs. private purposes debate. My hope was to get through this material as quickly as possible, and focus primarily on the pressing questions about how to implement Heller’s holding. This was a little trickier than I anticipated. It can easily take two or three weeks for students to get enough background reading (history, etc.) to evaluate the Scalia/Stevens disagreement. It’s easy to do a shallow dive on Heller, or to teach it in real depth, but I found it hard to do anything in the middle.

A second and related choice is how much to use the course as a way of understanding the Second Amendment “as such,” as opposed to using it as an avenue to explore other important topics in constitutional law: judicial review, the interpretive debates, federalism, and the like. I went back and forth on this, depending on the week, but in general tried to keep the focus on gun rights and regulation. It would also be easy enough to use Heller as a way to debate originalism and its alternatives, for example. But while I think that’s an important issue—and maybe particularly so in a constitutional law course—I didn’t want the Second Amendment to just be a battlefield for methodological dispute. The material is rich enough to stand alone.

A third choice is how much to foreground the creation of constitutional doctrine from the ground up. My sense is that, as they learn constitutional law, students tend to encounter doctrines that are presented as “fully grown”—the rules about the Commerce Clause, for example, are of course subject to change, but usually slowed by the gravitational pull of stare decisis. The Second Amendment, by contrast, gives a window into the kinds of design choices (rules v. standards, categories v. balancing, deference or not) that in other areas might be hidden under layers of precedent. In gun cases, those questions are front, center, and explicit. That is one of things that makes the field exciting for scholars; turns out it can be useful for teachers as well.

A fourth choice is how much to go beyond the Second Amendment itself and talk about the crucial non-constitutional law that shapes the right to keep and bear arms in practice: the ins and outs of state and federal gun laws, for one thing, but also issues like seller liability, PLCAA, and even common law rules like nuisance. I focused almost exclusively on constitutional issues, and in retrospect I regret that decision. When I teach the class again this year, I plan to focus on more of these non-constitutional legal issues.

Since mine is the last post of the week, I’d like to again thank everyone for participating, and reiterate that we here at the Center are always happy to answer questions or help find resources for those interested in teaching firearms law. Please reach out to us at firearmslaw@law.duke.edu.

[Ed. Note: This post is part of a week-long mini-symposium on teaching firearms law.]