Month: October 2019

One Gun Policy Idea We Can Agree On: Magazine Regulation

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 embrace unadorned fealty to a broad reading of the Second Amendment (including two new conservative Supreme Court justices) suggests that the courts are poised to view gun laws with greater skepticism.

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

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 in and clarify. From the Introduction:

. . . Heller defined the core purpose of the Second Amendment as the right to use handguns for self-defense. Absent from this definition is the answer to a crucial question, the question on which this Note will focus: is the core limited to certain locations? Stated more directly, is it limited to the home? As the recent cases of Wrenn v. District of Columbia and Young v. Hawaii illustrate, by expanding or contracting the Second Amendment’s core, courts give themselves significant leeway to determine whether a statute that limits firearm possession outside the home is constitutional. . . .

Part I of this Note explores the background of the Second Amendment by highlighting the role of the militia during the American Revolution. This section illustrates the public admiration of the militia during the colonial period as well as the shared public fear of the militia’s antithesis: a standing military. As discussed in other writings, there is an argument that the founders did not envision the Second Amendment as a protection of individual firearm rights unrelated to state militias but, rather, intended it to provide a balance against the federal military by granting citizens the right to keep and bear arms in the limited context of militia service.

Part II analyzes the Supreme Court’s decisions in Heller and McDonald. While these decisions relied heavily on a historical interpretation of the Second Amendment, in both instances, the Court expanded the reach of the widely-believed intent of the framers and held that the Second Amendment protects an individual right to possess handguns for self-defense even in the absence of any militia connection.

Part III discusses the hotly contested right of public-carry by examining and defining good-cause statutes. As previously noted, such statutes often deny public-carry permits to law-abiding citizens with no mental health concerns unless the applicant is able to establish cause for self-defense over and above the self-protection needs of the general public. This portion of the Note also analyzes the public-carry circuit split in light of the recent Wrenn and Young decisions, and more specifically, exposes the shifting core of the Second Amendment. While Wrenn created the split, Young introduced a third interpretation of the core, thus revealing the core’s malleable nature.

. . .

Part IV raises the point that the judicial focus on the Second Amendment’s core appears to have grown since Heller. Given the current spotlight on the core, this Part argues that the concept of the core is possibly being rendered unnecessarily abstract as a result of the relevant case law’s failure to explain what exactly it means for the Second Amendment to have a core in the first place. This portion of the Note suggests, based on language and inferences drawn from Heller and McDonald, that the Second Amendment’s core is properly defined and understood simply as the Amendment’s primary purpose. It then examines whether such a substitution of terms might have altered the Ninth Circuit’s ruling in Young.

Given the shifting nature of the core, Part VI concludes by arguing that the disagreement among the circuits regarding the right to carry handguns in public makes Supreme Court intervention both necessary and appropriate. In America’s mass-shooting society, the public safety implications of a Supreme Court ruling placing the right of public-carry either inside or outside of the core of the Second Amendment could be profound.

Outstanding Second Amendment and Firearms Law Cert Petitions

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. I’ve previously written about the recent requests for Supreme Court review (here and here) and, surprisingly or not, many of the petitions highlighted there–more than four months ago–have yet to be acted on.

Below are the petitions outstanding at the Court (sorted by date the petition was filed). Note that some of these may be resolved on Monday when orders from the Long Conference are expected.


Case Court Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conference

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conference

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conference

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conference

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed

1-Oct-19 conference

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime relisted for 18-Oct-19 conference
Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conference

Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed

1-Oct-19 conference

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act resp. due 18-Oct-2019
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act reply due 18-Oct-2019
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Nov-2019
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) resp. due 4-Nov-2019
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 25-Oct-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 30-Oct-19





Scholarship Highlight: Lund on Second Amendment Methodology

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 means-end scrutiny—is misguided. Justice Kavanaugh, Lund contends “misinterpreted Heller” and thus adopted an approach “he mistakenly imputed to Heller.”

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

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 bound to an originalist methodology in assessing Second Amendment claims. In his concurring opinion in Kisor v. Wilkie last term, Justice Gorsuch may have cast some doubt on such a strong assumption.