Scholarship Highlight: New Articles Call for Re-Examining Second Amendment Issues

A few new pieces of legal scholarship were published recently and have just have popped up on Westlaw, including from frequent guest blogger Dru Stevenson and the Center’s own Joseph Blocher. The articles address important questions at the heart of debates over the Second Amendment. (Two of the articles, Stevenson and Kelly, I could only find available on Westlaw, so the links lead there rather than to a PDF.) Check them out below!

Dru Stevenson, The Urgent Need for Legal Scholarship on Firearm Policy, 67 Buff. L. Rev. 1449 (2019)

From the abstract:

Restrictions on federal funding for research pertaining to firearm policy have stymied academic inquiry by social science and public health researchers for over two decades. As a result, most researchers agree that our public discourse about this urgent issue is woefully under-informed, or even ill-informed, on both sides of the debate. Legal academia, which does not operate under the same grant-writing regime as most other disciplines, can and should help fill this gap in researching and theorizing the unresolved questions related to firearm policy. In fact, theoretical development and clarification from the legal academy is often a necessary antecedent for empirical researchers in other fields to frame and develop their own studies properly, especially about the real-world effects of competing policy approaches to firearms. This Essay sets forth a plea to law professors to undertake much-needed research in this area and offers suggestions of understudied topics with low entry barriers for legal commentators. Recommendations for interdisciplinary collaborative efforts round out this discussion. A brief conclusion reaches the endgame issue: ensuring access to the work we produce.

Joseph Blocher, Domestic Violence and the Home-Centric Second Amendment, 27 Duke J. Gender L. & Pol’y 45 (2020)

From the abstract:

The most prominent line-drawing debate in Second Amendment law and scholarship is whether and to what degree the right to keep and bear arms extends outside the home. Inside the home, the right is thought to be strongest, as private interests are at their apex and governmental interests are correspondingly weaker. But an uncritical acceptance of this home-centric Second Amendment is not well-equipped to account for the intersection between guns and domestic violence (DV). For women in particular, domestic violence in the home is a more significant threat than assault by a stranger, and studies have shown that the availability of a firearm in the home can exacerbate the already-significant risk that such violence ends in murder. The reality of armed DV poses a challenge for the homebound or home-centric right to keep and bear arms, and for Second Amendment law and scholarship more generally.

Austin R. Nelson, Note, A Pragmatic Approach to the Second Amendment, 24 Tex. Rev. L. & Pol. 263 (2019)

From the introduction:

Whereas the federal judiciary tends to subject other fundamental rights to formalistic or rationalistic rules or tests, this Note maintains that the fundamental right of Americans to bear arms, protected by the Second and Fourteenth Amendments, should be analyzed under a pragmatic framework–a framework that (1) pays close attention to practical consequences, (2) emphasizes context, and (3) is empirical and experimental. Part I of this Note sketches the contours of pragmatism as a legal-philosophical approach. Part II argues that the best standard for adjudicating Second Amendment claims is intermediate scrutiny rather than rational basis review or strict scrutiny. Part III identifies five contextual factors–the five “W”s–that courts should carefully consider when deciding whether the government has met its burden of persuasion under intermediate scrutiny. Part IV briefly concludes this Note.

Meagan Kelly, Note, How Can You Ban What Doesn’t Exist? Redefining the “Assault Weapon”, 12 Drexel L. Rev. 331 (2020)

From the abstract:

The term “assault weapon” has become synonymous with one of the most contentious political debates of our time. As gun politics stands today, there remains little room for compromise and a narrative mired in heavy emotion and staunch traditional principles. But as the debate swirls and deadlocks, the United States continues to experience a trend of violence unique amongst all other developed democratic societies. Yet neither this characteristically American mass violence, nor the continuous political efforts to restrict or expand Second Amendment rights are recent phenomena. Our country has been deeply entrenched in the “assault weapon” debate for more than half of the twenty-first century, and as the natures of societal violence, warfare, and the firearms market at large change, the understanding of the term “assault weapon” does so as well. This Note examines those different understandings of an “assault weapon” and how those conflicting understandings have shaped legislation and, consequently, the resistance to legislation attempting to restrict the controversial weapon. Competing understandings of an “assault weapon” have led to a patchwork system of state-to-state assault weapon bans and a federal ban which not only lacked the political support to avoid expiration in 2004, but also had little overall effect during the decade it was in force. Mass shootings are a pervasive and continuous threat to the fabric of American society and the problem must be addressed explicitly. The right to keep and bear arms will continue to stand protected within our Constitution. But if legislators and voters alike do not recognize the necessity of balancing the interests of life and liberty against those of gun ownership, we will implicitly accept that the Second Amendment is to be protected at the expense of innocent lives. This Note proposes a legislative approach to an assault weapons ban that would consider the prevalence of semi-automatic AR-15 rifles in mass shootings as well as the mechanics of the rifle that make it particularly lethal. There is a time and place for weapons of certain qualities. Our gun laws must reflect a respect for the distinction between modern warfare and an orderly civilian society.